CUSTOMARY INTERNATIONAL HUMANITARIAN LAW VOLUME I RULES

Transcript

1 Customary International Humanitarian Law Henckaerts Volume I: Rules and In 1996, the International Committee of the Red Cross, alongside a range of Doswald-Beck Customary International renowned experts, embarked upon a major international study into current state practice in international humanitarian law in order to identify customary law in this area. This book (along with its companion, Volume II: Practice) is the result of Humanitarian Law Customary that study, a comprehensive analysis of the customary rules of international humanitarian law applicable in international and non-international armed International Volume I: Rules conflicts. Given that important treaties in this area have not yet been universally Humanitarian ratified, this is clearly a publication of major importance, carried out at the express Law request of the international community. In so doing, this study identifies the com- mon core of international humanitarian law binding on all parties to all armed Volume I: Rules conflicts. This original, authoritative work will be an essential tool for anyone involved with international humanitarian law. Jean-Marie Henckaerts Jean-Marie Henckaerts and Louise Doswald-Beck is Legal Adviser at the Legal Division of the International Committee of the Red Cross in Geneva. Doswald-Beck Louise is Professor at the Graduate Institute of International Studies and Director of the University Centre for International Humanitarian Law in Geneva. She was formerly Secretary-General of the International Commission of Jurists and Head of the Legal Division of the International Committee of the Red Cross. ICRC ICRC

2 Customary International Humanitarian Law

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4 international committee of the red cross CUSTOMARY INTERNATIONAL HUMANITARIAN LAW VOLUME I RULES Jean-Marie Henckaerts and Louise Doswald-Beck With contributions by Carolin Alvermann, Knut D ormann and Baptiste Rolle ̈

5 cambridge university press ~ Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sa~ o ~~ Paulo, Delhi Cambridge University Press The Edinburgh Building, Cambridge, CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title:www.cambridge.org/9780521005289 © C International Committee of the Red Cross 2005 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2005 Third printing 2007 Reprinted with corrections 2009 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library -80899 -6 hardback -521 ISBN 978-0 -521 -00528 -9 paperback ISBN 978-0 Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Information regarding prices, travel timetables and other factual information given in this work are correct at the time of first printing such University of Press accuracy does the not guarantee but Cambridge information thereafter.

6 CONTENTS Foreword by ICRC President Jakob Kellenberger xv page xviii Foreword by Judge Abdul G. Koroma xx Foreword by Yves Sandoz Acknowledgements xxv Introduction xxxi List of Abbreviations lviii Part I. THE PRINCIPLE OF DISTINCTION Chapter 1. Distinction between Civilians and Combatants 3 Rule 1. The Principle of Distinction between Civilians and Combatants 3 Rule 2. Violence Aimed at Spreading Terror among the Civilian Population 8 Rule 3. Definition of Combatants 11 Rule 4. Definition of Armed Forces 14 Rule 5. Definition of Civilians 17 Rule 6. Loss of Protection from Attack 19 Chapter 2. Distinction between Civilian Objects and Military Objectives 25 Rule 7. The Principle of Distinction between Civilian Objects and Military Objectives 25 Rule 8. Definition of Military Objectives 29 Rule 9. Definition of Civilian Objects 32 Rule 10. Loss of Protection from Attack 34 Chapter 3. Indiscriminate Attacks 37 Rule 11. Indiscriminate Attacks 37 Rule 12. Definition of Indiscriminate Attacks 40 Rule 13. Area Bombardment 43 Chapter 4. Proportionality in Attack 46 Rule 14. Proportionality in Attack 46 v

7 vi Contents 51 Chapter 5. Precautions in Attack Rule 15. Principle of Precautions in Attack 51 55 Rule 16. Target Verification Rule 17. Choice of Means and Methods of 56 Warfare Rule 18. Assessment of the Effects of Attacks 58 Rule 19. Control during the Execution of 60 Attacks Rule 20. Advance Warning 62 Rule 21. Target Selection 65 Chapter 6. Precautions against the Effects of Attacks 68 Rule 22. Principle of Precautions against the Effects of Attacks 68 Rule 23. Location of Military Objectives 71 outside Densely Populated Areas Rule 24. Removal of Civilians and Civilian Objects from the Vicinity of Military Objectives 74 Part II. SPECIFICALLY PROTECTED PERSONS AND OBJECTS Chapter 7. Medical and Religious Personnel and Objects 79 Rule 25. Medical Personnel 79 86 Rule 26. Medical Activities 88 Rule 27. Religious Personnel Rule 28. Medical Units 91 98 Rule 29. Medical Transports Rule 30. Persons and Objects Displaying the Distinctive Emblem 102 Chapter 8. Humanitarian Relief Personnel and Objects 105 Rule 31. Safety of Humanitarian Relief Personnel 105 Rule 32. Safety of Humanitarian Relief Objects 109 Chapter 9. Personnel and Objects Involved in a Peacekeeping Mission 112 Rule 33. Personnel and Objects Involved in a Peacekeeping Mission 112 Chapter 10. Journalists 115 Rule 34. Journalists 115 Chapter 11. Protected Zones 119 Rule 35. Hospital and Safety Zones 119

8 Contents vii 120 Rule 36. Demilitarised Zones Rule 37. Non-defended Localities 122 127 Chapter 12. Cultural Property Rule 38. Attacks against Cultural Property 127 Rule 39. Use of Cultural Property for Military Purposes 131 Rule 40. Respect for Cultural Property 132 Rule 41. Export and Return of Cultural Property in Occupied Territory 135 Chapter 13. Works and Installations Containing 139 Dangerous Forces Rule 42. Works and Installations Containing Dangerous Forces 139 Chapter 14. The Natural Environment 143 Rule 43. Application of the General Rules on the Conduct of Hostilities to the 143 Natural Environment Rule 44. Due Regard for the Natural Environment in Military Operations 147 Rule 45. Serious Damage to the Natural Environment 151 Part III. SPECIFIC METHODS OF WARFARE Chapter 15. Denial of Quarter 161 Rule 46. Order or Threats that No Quarter Will Be Given 161 Rule 47. Attacks against Persons Hors de 164 Combat Rule 48. Attacks against Persons Parachuting from an Aircraft in Distress 170 Chapter 16. Destruction and Seizure of Property 173 Rule 49. War Booty 173 Rule 50. Destruction and Seizure of Enemy 175 Property Rule 51. Public and Private Property in Occupied Territory 178 Rule 52. Pillage 182 Chapter 17. Starvation and Access to Humanitarian Relief 186 Rule 53. Starvation as a Method of Warfare 186 Rule 54. Attacks against Objects Indispensable to the Survival of the Civilian Population 189

9 viii Contents Rule 55. Access for Humanitarian Relief to Civilians in Need 193 Rule 56. Freedom of Movement of 200 Humanitarian Relief Personnel 203 Chapter 18. Deception Rule 57. Ruses of War 203 Rule 58. Improper Use of the White Flag 205 of Truce Rule 59. Improper Use of the Distinctive Emblems of the Geneva Conventions 207 Rule 60. Improper Use of the United Nations 210 Emblem and Uniform Rule 61. Improper Use of Other Internationally Recognised Emblems 211 Rule 62. Improper Use of Flags or Military Emblems, Insignia or Uniforms of the Adversary 213 Rule 63. Use of Flags or Military Emblems, Insignia or Uniforms of Neutral or Other States Not Party to the Conflict 218 Rule 64. Conclusion of an Agreement to Suspend Combat with the Intention of Attacking by Surprise the Adversary Relying on It 219 Rule 65. Perfidy 221 227 Chapter 19. Communication with the Enemy Rule 66. Non-hostile Contacts between the Parties to the Conflict 227 Rule 67. Inviolability of Parlementaires 229 Rule 68. Precautions while Receiving Parlementaires 231 Rule 69. Loss of Inviolability of Parlementaires 232 Part IV. USE OF WEAPONS Chapter 20. General Principles on the Use of Weapons 237 Rule 70. Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering 237 Rule 71. Weapons that Are by Nature Indiscriminate 244

10 Contents ix 251 Chapter 21. Poison Rule 72. Poison 251 255 Chapter 22. Nuclear Weapons Chapter 23. Biological Weapons 256 Rule 73. Biological Weapons 256 Chapter 24. Chemical Weapons 259 259 Rule 74. Chemical Weapons Rule 75. Riot Control Agents 263 Rule 76. Herbicides 265 Chapter 25. Expanding Bullets 268 268 Rule 77. Expanding Bullets 272 Chapter 26. Exploding Bullets 272 Rule 78. Exploding Bullets Chapter 27. Weapons Primarily Injuring by Non-detectable 275 Fragments Rule 79. Weapons Primarily Injuring by Non-detectable Fragments 275 Chapter 28. Booby-Traps 278 Rule 80. Booby-Traps 278 280 Chapter 29. Landmines 280 Rule 81. Restrictions on the Use of Landmines Rule 82. Recording of the Placement of 283 Landmines Rule 83. Removal or Neutralisation of Landmines 285 Chapter 30. Incendiary Weapons 287 Rule 84. Restrictions on the Use of Incendiary Weapons 287 Rule 85. Use of Incendiary Weapons against 289 Combatants Chapter 31. Blinding Laser Weapons 292 Rule 86. Blinding Laser Weapons 292 Part V. TREATMENT OF CIVILIANS AND PERSONS HORS DE COMBAT Chapter 32. Fundamental Guarantees 299 Rule 87. Humane Treatment 306 Rule 88. Non-discrimination 308

11 x Contents 311 Rule 89. Murder Rule 90. Torture and Cruel, Inhuman or Degrading Treatment 315 Rule 91. Corporal Punishment 319 Rule 92. Mutilation and Medical, Scientific or Biological Experiments 320 Rule 93. Rape and Other Forms of Sexual Violence 323 Rule 94. Slavery and the Slave Trade 327 Rule 95. Forced Labour 330 Rule 96. Hostage-Taking 334 Rule 97. Human Shields 337 340 Rule 98. Enforced Disappearance 344 Rule 99. Deprivation of Liberty Rule 100. Fair Trial Guarantees 352 Rule 101. Principle of Legality 371 Rule 102. Individual Criminal Responsibility 372 Rule 103. Collective Punishments 374 Rule 104. Respect for Convictions and Religious Practices 375 Rule 105. Respect for Family Life 379 384 Chapter 33. Combatants and Prisoner-of-War Status Rule 106. Conditions for Prisoner-of-War Status 384 Rule 107. Spies 389 Rule 108. Mercenaries 391 Chapter 34. The Wounded, Sick and Shipwrecked 396 Rule 109. Search for, Collection and Evacuation of the Wounded, Sick and Shipwrecked 396 Rule 110. Treatment and Care of the Wounded, Sick and Shipwrecked 400 Rule 111. Protection of the Wounded, Sick and Shipwrecked against Ill-treatment and Pillage 403 Chapter 35. The Dead 406 Rule 112. Search for and Collection of the Dead 406 Rule 113. Protection of the Dead against Despoliation and Mutilation 409 Rule 114. Return of the Remains and Personal Effects of the Dead 411

12 Contents xi 414 Rule 115. Disposal of the Dead Rule 116. Identification of the Dead 417 421 Chapter 36. Missing Persons Rule 117. Accounting for Missing Persons 421 Chapter 37. Persons Deprived of Their Liberty 428 Rule 118. Provision of Basic Necessities to Persons Deprived of Their Liberty 428 Rule 119. Accommodation for Women Deprived of Their Liberty 431 Rule 120. Accommodation for Children 433 Deprived of Their Liberty Rule 121. Location of Internment and Detention Centres 435 Rule 122. Pillage of the Personal Belongings of Persons Deprived of Their Liberty 437 Rule 123. Recording and Notification of Personal Details of Persons Deprived of Their Liberty 439 Rule 124. ICRC Access to Persons Deprived of Their Liberty 442 Rule 125. Correspondence of Persons Deprived of Their Liberty 445 Rule 126. Visits to Persons Deprived of Their Liberty 448 Rule 127. Respect for Convictions and Religious Practices of Persons Deprived of Their Liberty 449 Rule 128. Release and Return of Persons 451 Deprived of Their Liberty Chapter 38. Displacement and Displaced Persons 457 Rule 129. Act of Displacement 457 Rule 130. Transfer of Own Civilian Population into Occupied Territory 462 Rule 131. Treatment of Displaced Persons 463 Rule 132. Right of Return of Displaced Persons 468 Rule 133. Property Rights of Displaced Persons 472 Chapter 39. Other Persons Afforded Specific Protection 475 Rule 134. Women 475 Rule 135. Children 479 Rule 136. Recruitment of Child Soldiers 482

13 xii Contents Rule 137. Participation of Children in Hostilities 485 Rule 138. The Elderly, Disabled and Infirm 489 Part VI. IMPLEMENTATION 495 Chapter 40. Compliance with International Humanitarian Law Rule 139. Respect for International Humanitarian Law 495 498 Rule 140. Reciprocity Rule 141. Legal Advisers for Armed Forces 500 Rule 142. Instruction in International Humanitarian Law within Armed Forces 501 Rule 143. Dissemination of International Humanitarian Law among the 505 Civilian Population 509 Chapter 41. Enforcement of International Humanitarian Law Rule 144. Ensuring Respect for International Erga Omnes 509 Humanitarian Law Rule 145. Restrictions on Reprisals 513 Rule 146. Reprisals against Protected Persons 519 Rule 147. Reprisals against Protected Objects 523 Rule 148. Reprisals in Non-international Armed Conflicts 526 Chapter 42. Responsibility and Reparation 530 Rule 149. Responsibility for Violations of 530 International Humanitarian Law 537 Rule 150. Reparation Chapter 43. Individual Responsibility 551 Rule 151. Individual Responsibility 551 Rule 152. Command Responsibility for Orders to Commit War Crimes 556 Rule 153. Command Responsibility for Failure to Prevent, Repress or Report War Crimes 558 Rule 154. Obligation to Disobey Unlawful Superior Orders 563 Rule 155. Defence of Superior Orders 565 Chapter 44. War Crimes 568 Rule 156. Definition of War Crimes 568

14 Contents xiii Rule 157. Universal Jurisdiction over War Crimes 604 Rule 158. Obligation to Prosecute War Crimes 607 Rule 159. Amnesty 611 Rule 160. Statutes of Limitation 614 Rule 161. International Cooperation in Criminal Proceedings 618 Index 622

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16 FOREWORD BY DR. JAKOB KELLENBERGER President of the International Committee of the Red Cross The laws of war were born of confrontation between armed forces on the battle- field. Until the mid-nineteenth century, these rules remained customary in nature, recognised because they had existed since time immemorial and because they corresponded to the demands of civilisation. All civilisations have developed rules aimed at minimising violence – even this institution- alised form of violence that we call war – since limiting violence is the very essence of civilisation. By making international law a matter to be agreed between sovereigns and by basing it on State practice and consent, Grotius and the other founding fathers of public international law paved the way for that law to assume uni- versal dimensions, applicable both in peacetime and in wartime and able to transcend cultures and civilizations. However, it was the nineteenth-century visionary Henry Dunant who was the true pioneer of contemporary interna- tional humanitarian law. In calling for “some international principle, sanc- tioned by a Convention and inviolate in character” to protect the wounded and all those trying to help them, Dunant took humanitarian law a decisive step forward. By instigating the adoption, in 1864, of the Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field, Dunant and the other founders of the International Committee of the Red Cross laid the cornerstone of treaty-based international humanitarian law. This treaty was revised in 1906, and again in 1929 and 1949. New conventions protecting hospital ships, prisoners of war and civilians were also adopted. The result is the four Geneva Conventions of 1949, which constitute the foundation of international humanitarian law in force today. Acceptance by the States of these Conventions demonstrated that it was possible to adopt, in peacetime, rules to attenuate the horrors of war and protect those affected by it. Governments also adopted a series of treaties governing the conduct of hostil- ities: the Declaration of St Petersburg of 1868, the Hague Conventions of 1899 and 1907, and the Geneva Protocol of 1925, which bans the use of chemical and bacteriological weapons. These two normative currents merged in 1977 with the adoption of the two Protocols additional to the 1949 Geneva Conventions, which brought up to date both the rules governing the conduct of hostilities and those protecting war victims. xv

17 xvi Foreword by Dr. Jakob Kellenberger More recently, other important conventions were added to this already long list of treaties, in particular the 1980 Convention on Certain Conventional Weapons and its five Protocols, the 1997 Ottawa Convention on the Prohibition of Anti-Personnel Landmines, the 1998 Statute of the International Criminal Court, the 1999 Protocol to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and the 2000 Optional Protocol on the Involvement of Children in Armed Conflict. This remarkable progress in codifying international humanitarian law should not, however, cause us to ignore customary humanitarian law. There are three reasons why this body of law remains extremely important. First, while the Geneva Conventions enjoy universal adherence today, this is not yet the case for other major treaties, including the Additional Protocols. These treaties apply only between or within States that have ratified them. Rules of customary international humanitarian law on the other hand, some- times referred to as “general” international law, bind all States and, where relevant, all parties to the conflict, without the need for formal adherence. Second, international humanitarian law applicable to non-international armed conflict falls short of meeting the protection needs arising from these conflicts. As admitted by the diplomatic conferences that adopted them, Article 3 common to the Geneva Conventions and Protocol II additional to those Conventions represent only the most rudimentary set of rules. State practice goes beyond what those same States have accepted at diplomatic con- ferences, since most of them agree that the essence of customary rules on the conduct of hostilities applies to armed conflicts, international and non- all international. Last, customary international law can help in the interpretation of treaty law. It is a well-established principle that a treaty must be interpreted in good faith and with due regard for all relevant rules of international law. With this in mind, one better understands the mandate assigned to the ICRC by the 26th International Conference of the Red Cross and Red Cres- cent (Geneva, 1995), when the organization was asked to: prepare, with the assistance of experts in international humanitarian law repre- senting various geographical regions and different legal systems, and in consulta- tion with experts from governments and international organisations, a report on customary rules of international humanitarian law applicable in international and non-international armed conflicts, and to circulate the report to States and compe- tent international bodies. The ICRC accepted this mandate with gratitude and humility – gratitude because it appreciates the international community’s confidence in it as sym- bolised by this assignment, and humility since it was fully aware of the diffi- culty involved in describing the present state of customary international law on the basis of all available sources.

18 xvii Foreword by Dr. Jakob Kellenberger The ICRC charged two members of its Legal Division with the task of carry- ing out this study. Under the guidance of a Steering Committee composed of 12 experts of international repute, the ICRC engaged in a large-scale consultation process involving over 100 eminent authorities. Considering this report primar- ily as a work of scholarship, the ICRC respected the academic freedom both of the report’s authors and of the experts consulted, the idea being to capture the clearest possible “photograph” of customary international humanitarian law as it stands today. The ICRC believes that the study does indeed present an accurate assessment of the current state of customary international humanitarian law. It will there- fore duly take the outcome of this study into account in its daily work, while being aware that the formation of customary international law is an ongoing process. The study should also serve as a basis for discussion with respect to the implementation, clarification and development of humanitarian law. Lastly, the ICRC is pleased that this study has served to emphasise the uni- versality of humanitarian law. All traditions and civilizations have contributed to the development of this law, which is today part of the common heritage of mankind. The ICRC would like to express its deep gratitude to the experts who gave freely of their time and expertise, to the staff of its Legal Division, and in particular to the authors, who, in bringing this unique project to its conclusion, refused to be discouraged by the enormity of the task. In presenting this study to the States party to the Geneva Conventions, to National Red Cross and Red Crescent Societies and other humanitarian organi- sations, to judges and scholars and to other interested parties, the ICRC’s sincere hope is that it will clarify the meaning and significance of a number of rules of international humanitarian law and that it will ensure greater protection for war victims.

19 FOREWORD BY DR. ABDUL G. KOROMA Judge at the International Court of Justice Sadly, it cannot be said that the incidence of armed conflict has become any rarer since the end of the Second World War. Rather, a host of conflicts across the world, both international and non-international, have highlighted as never before the extent to which civilians have become targets and the growing need to ensure the protection of the wounded, the sick, detainees and the civilian population afforded to them by the rules of international humanitarian law. Opinions vary as to the reason for the increasing number of violations of inter- national humanitarian law. Is it a lack of awareness of the rules on the part of those who should observe them? Is it the inadequacy of the rules even where they are known? Is it weak mechanisms for enforcing the rules? Or is it sheer disregard for the rules? To some extent, there is truth in each. For international humanitarian law to be more effective, not one but all of these facets of the problem need to be addressed. Clearly, the first step in achieving the goal of universal respect for humanitarian rules must be the articulation of what the rules require; only then can the question of how to improve upon them be considered. This study of customary international humanitarian law and its role in pro- tecting the victims of war is both timely and important for a number of reasons. The relevant treaty law covers a wide variety of aspects of warfare, but treaty law, by its very nature, is unable to provide a complete picture of the state of the law. While treaties bind those States that have adhered to them, without the existence of customary law, non-parties would be free to act as they wished. In addition, because they are written down, treaty rules are well defined and must be clear as to the standard of conduct they require; but since a treaty is the result of an agreement between the parties, the instruction provided by a treaty rule is only as useful as the degree of genuine agreement achieved. Written rules cannot be vague or open to divergent interpretations. Customary international law, while being notorious for its imprecision, may be no less useful than treaty law, and may in fact actually have certain advantages over it. For example, it is widely accepted that general customary international law binds States that have not persistently and openly dissented in relation to a rule while that rule was in the process of formation. Also, one of the most important bases for the success of a treaty regime is the extent of the political will to achieve the xviii

20 xix Foreword by Dr. Abdul G. Koroma purposes of that treaty, and that is as important, if not more so, than the need for the rules to be in written form. Accordingly, this study, which aims to articulate the existing customary rules on the subject, can only help improve respect for international humanitarian law and offer greater protection to victims of war. Knowledge of the relevant customary law on the part of the various actors involved in its application, dissemination and enforcement, such as military personnel, governmental authorities, courts and tribunals and governmental and non-governmental organisations, is a vital first step towards enhancing the effectiveness of international humanitarian law. This study is an invaluable contribution to that goal.

21 FOREWORD BY DR. YVES SANDOZ Member of the International Committee of the Red Cross; former Director of the ICRC Department of International Law and Policy; Lecturer, Universities of Geneva and Fribourg The decision to go ahead with a study on customary international humanitar- ian law depended primarily on the answer to two questions – how useful it would be and how much it would cost – which together give us the famous cost-effectiveness ratio, something that must be taken into account in any undertaking, even if its purpose is humanitarian. To be sure, applying the criterion of cost-effectiveness is not necessarily appropriate for humanitarian work since it would be cynical to attach a finan- cial price to life and well-being. Nevertheless, those who run an organisation like the ICRC have a moral duty to seek maximum efficiency in the use to which they put their human and financial resources (while seeking to increase those resources). For, as long as there are wars, it will never be possible to do enough, or to do it well enough, to protect and assist those affected. The international community has given the ICRC the onerous mandate to “work for the faithful application of international humanitarian law”. This imposes a duty of constant vigilance. For the ICRC, impartiality means not only avoiding discrimination between the different victims of a given conflict, but also constantly striving to ensure that all the victims of all the conflicts on the planet are treated equitably, without regional or eth- nic preference and independently of the emotions sparked by media-selected images. This concern to avoid discrimination and to ensure impartiality on a global scale guides the ICRC in choosing its activities. When the time comes to make these choices, meeting the victims’ urgent need for food and medical care log- ically remains the priority and claims far and away the largest part of the organisation’s budget. How could paying for a meeting of experts take prece- dence over delivering sacks of flour? The choices, however, are not that stark. Experience has shown that nothing is to be gained by swinging blindly into action when the fighting starts. Many organisations have learned the hard way that you cannot be effective without first understanding the situation in which you are working, the mentality of those involved in the conflict and the society and culture of those you seek to aid. And if you must first understand, you must also be understood, not only by the combatants – who must know and accept the red cross and red crescent xx

22 xxi Foreword by Dr. Yves Sandoz emblems and the principles of humanity, impartiality and neutrality symbol- ised by that emblem – but also by your intended beneficiaries. The ICRC’s long experience has convinced it that in order to be effective it has to engage in a wide range of activities, activities that must not be viewed in isolation but rather in relation to one another. The complementary nature of those activities has grown ever clearer with the passing years. Each of these activities is linked to other activities, all fitting together to form a coherent edifice. That is, humanitarian action in the field prompts dis- cussion, which then develops in meetings of experts of various kinds before eventually taking the form of treaty provisions or new international institu- tions such as the International Criminal Court, whose Statute was adopted in 1998. The next task is to work towards universal acceptance of the new rules by convincing the States through their governments, their parliaments, their senior officials, etc. of the importance of respecting such rules. Lastly, indi- vidual States must be encouraged to adopt national laws incorporating the new rules into domestic legislation, to ensure that the public knows and understands basic humanitarian principles, to ensure that international humanitarian law is adequately taught in schools and universities, and to integrate the subject into military training. The ultimate goal of all this work is to benefit the victims of war and facilitate the task of those seeking to help them. But it will never be enough. War will remain cruel and there will never be adequate compliance with rules aimed at curbing that cruelty. New problems will arise requiring new forms of action and new discussion about the adequacy of existing rules or their application to new realities. And so the great wheel of law and humanitarian endeavour will continue to turn in the direction of a goal that may never be fully attained, that is, an end to armed conflict. Indeed, that goal sometimes seems to recede amid the pain and anguish of countless wars; but we must always struggle back towards it. A lawyer in an office working on the development of international human- itarian law is doing a job different from that of the surgeon treating wounded people or a nutritionist in a refugee camp. But all three are in fact pursuing the same objective, each with his or her own place in the indispensable circle of law and humanitarian action. Ascertaining the role played by legal experts is nevertheless not enough to jus- tify a study on customary international humanitarian law. As part of the process outlined above, the ICRC has in recent years devoted significant resources to considering the state of the law and to spreading knowledge of it. But those resources are limited and choices must therefore be made between various options within the legal domain. Should priority be given to developing new law, promoting national legislation, clarifying certain aspects of practical implementation, consulting experts on sensitive questions, training the

23 xxii Foreword by Dr. Yves Sandoz miliitary or mobilising public opinion as a means of bringing about greater compliance? All these activities are necessary to some extent, but the question is where the priority belongs. The singular thing about the proposed study on customary law was that it was ill-suited to compromise and to half-measures. The choice was between doing it – and ensuring that one had the means to do it well – and foregoing it on the grounds that its value would rely totally on its credibility. The decision was eventually taken to go ahead with the project. The ICRC’s Legal Division was assigned this difficult task and given the means to do a thorough job. Lavish means were not necessary because the ICRC is lucky enough to be able to count on volunteer work by a wide range of the world’s leading experts. And we cannot thank them enough for their generosity and commitment. But the administrative work involved and the tasks of organising meetings and translating a number of texts all obviously cost money, as does tapping the sources, in all corners of the world, on which the study is based. How then can such an investment be justified? Why devote large-scale resources to clarifying what is customary in a branch of law that is so widely codified and by whose treaties the vast majority of States are bound? Many reasons can be given for this, but I will cite two which seem to me essential. The first is that, despite everything, there remain in international humanitar- ian law vast but little-known reaches that it is important to explore more fully. This is particularly the case for the rules restricting the use of certain means and methods of warfare. These rules, which were laid down in the Additional Protocols of 1977, very directly concern the military, since it is they who have to implement these rules. If they are sometimes rather vague, this is because at the time of their adoption it was not possible for everyone to agree on a more precise formulation. The problem is all the more sensitive as the great majority of modern-day armed conflicts are internal, while most of the rules in question are formally applicable only to international conflicts. For the average person, this is com- pletely absurd. Indeed, how can one claim the right to employ against one’s own population means of warfare which one has prohibited for use against an invader? Nevertheless, for historical reasons, precisely this distinction has been made. To be sure, treaties drawn up today tend to soften the effects of this distinction. It exists all the same, and the study on customary law makes it possible to ascertain the extent to which it has been blurred in practice and according to the opinio juris of the States. The ICRC study also represents an excellent opportunity to view interna- tional humanitarian law in its entirety, asking what purpose it has served and how it has been applied, studying the relevance of its various provisions and determining whether some of the problems encountered today do not call for a fresh look at this or that provision.

24 xxiii Foreword by Dr. Yves Sandoz The study plays a capital role in answering these questions, especially as the problem is not to know whether given rules exist or not but rather how to interpret them. But this is no easy matter. Whatever else, the study’s conclu- sions will serve as a valuable basis for identifying areas in the law that should be clarified or developed and for engaging in whatever dialogue or negotia- tion is necessary to strengthen the coherence of military doctrines and those of the jurisprudence of national and international courts, present or future. Therefore, coherence is indispensable to international humanitarian law’s credibility. The second reason is to be found not so much in the results of the study but in the study itself. Doing research throughout the world to find out how the rules are complied with, translated, taught and applied, then collating that information in order to ascertain both the successes and the remaining gaps – is all this not the best way to ensure more effective application of these rules, to stimulate interest, research and new ideas and, above all, to encourage dia- logue between the world’s different cultures? This undertaking has particular significance at a time of renewed tension for humanity when religious and cul- tural frictions are being exploited for violent ends. The Geneva Conventions have been universally embraced. The rules of international humanitarian law represent a kind of common heritage of mankind, with its roots in all human cultures. They can therefore be viewed as a cement between different cultures. It is thus essential to remind people of those rules and persuade them to comply. The study has been a golden opportunity to do this. With the fruit of this enormous labour before us, one might think that the circle has been closed. The contrary is the case, however, and I would like to conclude by stressing that this study will have achieved its goal only if it is considered not as the end of a process but as a beginning. It reveals what has been accomplished but also what remains unclear and what remains to be done. The study is a still photograph of reality, taken with great concern for absolute honesty, that is, without trying to make the law say what one wishes it would say. I am convinced that this is what lends the study international credibility. But though it represents the truest possible reflection of reality, the study makes no claim to be the final word. It is not all-encompassing – choices had to be made – and no one is infallible. In the introduction to De jure belli ac pacis , Grotius says this to his readers: “I beg and adjure all those into whose hands this work shall come, that they assume towards me the same liberty which I have assumed in passing upon the opinions and writings of others.” What better way to express the objective of those who carried out this study? May it be read, discussed and commented on. May it prompt renewed examination of international humanitarian law and of the means of bringing about greater compliance and of developing the law. Perhaps it could even help go beyond the

25 xxiv Foreword by Dr. Yves Sandoz subject of war and spur us to think about the value of the principles on which the law is based in order to build universal peace – the utopian imperative – in the century on which we have now embarked. The study on customary international humanitarian law is more than the record of a worthy project – it is above all a challenge for the future.

26 ACKNOWLEDGEMENTS The realisation of this study would not have been possible without the hard work and commitment of many. Persons from all corners of the globe and with different areas of expertise contributed to the study in the form of research, drafting, reviewing, fact-checking, editing, proofreading and expert advice. We are profoundly grateful to all of them for their dedication, support and assis- tance. While we have attempted to list each person individually, we are con- scious there are also many unnamed persons who have helped in the accom- plishment of this work. To all of them, we would also like to express our sincere gratitude and apologise in advance for any inadvertent omissions. National Research Teams The reports on State practice were prepared by the following teams: Algeria: Professor Ahmed Laraba Professor Maurice Kamto, with the assistance of Albert Hilaire Angola: Anoubon Momo and Andr e Ndomikolayi ́ Professor Ra ul Emilio Vinuesa, with the assistance of Silvina Sandra Argentina: ́ ıa Pastor Gonzalez Napolitano and Marta Mar ́ Australia: Professor Timothy McCormack, with the assistance of Gideon Boas, Malcolm Langford, Colin Andrew Hatcher, Virginia Newell and Shahyar Rousha Belgium: Professor Eric David, with the assistance of Isabelle Kuntziger, Garlone Egels and Robert Remacle The financial contribution of the Belgian Red Cross is gratefully acknow- ledged. Bosnia and Herzegovina: Colonel Mugo Ge c (Federation of Bosnia and Herze- ́ govina) and Professor Liljana Mijovi c, with the assistance of Nedeljko ́ Milijevi c (Republika Srpska) ́ Professor Oagile Key Dingake Botswana: Brazil: Professor Ant onio Augusto Canc ̧ ado Trindade ˆ Canada: Professor Katia Boustany (deceased), with the assistance of Maria Molina Chile: Professor Hern an Salinas Burgos, with the assistance of Daniela Kravetz ́ xxv

27 xxvi Acknowledgements Professor Tieya Wang (deceased), with the assistance of Professor Yong China: Zhang Fabricio L opez Sacconi, with the assistance of Ra ul Hern andez, Colombia: ́ ́ ́ Magaly Ramos, Sonia Torres and Mauricio Reyes si c, with the assistance of Professor Ksenija Professor Maja Ser Croatia: ˇ ́ c, Davorin Lapas and Ivica Kinder Turkovi ́ Cuba: Doctora Mar ıa de los Angeles de Varona Hern andez ́ ́ Professor Ahmed Abou El Wafa Egypt: El Salvador: Professor Ant onio Augusto Canc ̧ ado Trindade, with the assistance ˆ of Cristina Zeledon Professor Andreas Eshete, with the assistance of Alemu Brook Ethiopia: France: Professor Paul Tavernier, with the assistance of Eloi Fillion, Claire Servoin, Karine Mollard-Bannelier, Davide Ferrarini, Dr. B eatrice Maurer, ́ Karine Christakis, Isabelle Capette, Franc ̧ ois Darribehaude, Sonia Parayre and Marianne Saracco Germany: Professor Horst Fischer, with the assistance of Dr. Gregor Schotten and Dr. Heike Spieker India: Professor Nripendra Lal Mitra, with the assistance of Dr. Umesh Veeresh Kadam (research coordinator), Dr. M. K. Nawaz, Dr. S. V. Joga Rao, Dr. V. Vijaya Kumar, M. K. Balachandran, T. S. Matilal and Rekha Chaturvedi Indonesia: Professor G. P. H. Haryomataram, with the assistance of Fadillah Agus, Kushartoyo Budisantoso, Arlina Permanasari, Andrey Sujatmoko and Aji Wibowo Iran: Professor Djamchid Momtaz, with the assistance of Farah Rahmani Iraq: Professor Mohammed Abdallah Ad-Douri, with the assistance of Dr. Janan Sukker Israel: Professor Yoram Dinstein, with the assistance of Dr. Fania Domb Italy: Professor Gabriella Venturini, Professor Paolo Benvenuti, with the assis- tance of Dr. Enrico Casalini and Dr. Marco Graziani Japan: Professor Hisakazu Fujita, with the assistance of Professor Akira Mayama, Yukiko Takashiba and Hiromi Yoshino Jordan: Professor Mohamed Yousef Olwan, with the assistance of Lieutenant- Colonel Muhannad Hijazi and Dr. Ghazi Ar-Rashdan Korea (Republic of): Professor Jae-Ho Sung, with the assistance of Dr. Min-Hyo Lee Kuwait: Professor Eisa Al-Enezi Lebanon: Professor Hassan Kassem Jouni, with the assistance of George Khalil Saad and Abdelrahman Makki Malaysia: Professor Nurhalida binti Mohamed Khalil, with the assistance of Zalina binti Abdul Halim Netherlands: Anna Nuiten, under the supervision of Dr. Gerard Tanja, Profes- sor Frits Kalshoven, Hans Boddens Hosang, Katrien Coppens, Dr. Liesbeth Lijnzaad and Hanneke van Sambeek

28 xxvii Acknowledgements The financial contribution of the T. M. C. Asser Institute is gratefully acknowledged. Nicaragua: onio Augusto Canc ̧ ado Trindade, with the assistance Professor Ant ˆ of Cristina Zeledon Nigeria: Professor Amechi Uchegbu, with the assistance of Dr. B. O. Okere and Muhammed T. Ladan, Esq. Pakistan: Ahmar Bilal Soofi, Esq. ul Emilio Vinuesa, with the assistance of Silvina Sandra Peru: Professor Ra ́ alez Napolitano, Marta Mar ıa Pastor and Yesenia J. Cabezas Anicama Gonz ́ ́ Professor Alberto T. Muyot, with the assistance of Joel P. Raquedan Philippines: and Vincent Pepito F. Yambao, Jr. Russian Federation: Professor Igor Pavlovitch Blishchenko (deceased), with the assistance of Professor Aslan Abashidze Professor F Rwanda: elicit e Karomba, with the assistance of Straton ́ ́ Nsengiyumva South Africa: Professor Michael Cowling Spain: Dr. Jos e Luis Rodr ıguez-Villasante y Prieto, with the assistance ́ ́ omez, Professor Dr. Julio Jorge Urbina, Juan andez G of Manuel Fern ́ ́ ıa Labajo, Juan Carlos Gonz alez Barral, Vicente Otero Solana, Manuel Garc ́ ́ arez Leoz, Dr. Francisco Alonso P erez, Dr. Gonzalo Jar Couselo, David Su ́ ́ Sonia Hern alez, Fernando Pig- andez Prada, Professor Dr. Manuel P erez Gonz ́ ́ ́ omez and Federico Bordas natelli Meca, Javier Guis andez G ́ ́ Syria: Professor Muhammad Aziz Shukri, with the assistance of Dr. Amal Yaziji and Maan Mahasen Professor Franc ̧ oise Hampson, with the assistance of United Kingdom: Dr. Jenny Kuper. The financial contributions of the British Red Cross and the Foreign and Commonwealth Office are gratefully acknowledged. United States of America: Burrus M. Carnahan, with the assistance of Michael H. Hoffman and Professor Theodor Meron Uruguay: Professor Ra ul Emilio Vinuesa, with the assistance of Silvina Sandra ́ Gonz ıa Pastor alez Napolitano and Marta Mar ́ ́ Yugoslavia: Professor Milan ahovi c, with the assistance of Dejan ahovi c, ́ ́ Dr. Miodrag Star cevi c c and Dr. Bosko Jakovljevi ́ ˇ ́ Joel Zowa, with the assistance of Dr. Lovemore Madhuku Zimbabwe: Professor International Research Teams The international research teams collected practice from international sources, consolidated their research with those of the national research teams and prepared the first draft of the study. The researchers are Richard Desgagn e, ́ Camille Giffard, Gustaf Lind, Gregor Schotten, Heike Spieker and Jean-Franc ̧ ois Qu eguiner. ́

29 xxviii Acknowledgements These researchers worked under the supervision of the Rapporteurs who presented a first assessment of customary international humanitarian law at the meetings of the Steering Committee and a second assessment during the consultations with academic and governmental experts. The Rapporteurs are Professors Georges Abi-Saab, Ove Bring, Eric David, Horst Fischer, Franc ̧ oise Hampson and Theodor Meron. The financial contributions of the British and Swedish Red Cross Societies and of the Swedish Ministry of Foreign Affairs towards the work of Professors Hampson and Bring respectively are gratefully acknowledged. Steering Committee The study was carried out under the guidance and with the advice of the Steering Committee, whose members are Professors Georges Abi-Saab, Salah El-Din Amer, Ove Bring, Eric David, John Dugard, Florentino Feliciano, Horst Fischer, Franc ̧ oise Hampson, Theodor Meron, Djamchid Momtaz, Milan ahovi c and ́ ul Emilio Vinuesa. Ra ́ Academic and Governmental Experts The experts invited to comment on the first assessment provided by the inter- national research teams are Abdallah Ad-Douri, Paul Berman, Sadi C ̧ ayc y, ́ Michael Cowling, Edward Cummings, Antonio de Icaza, Yoram Dinstein, Jean- Michel Favre, William Fenrick, Dieter Fleck, Juan Carlos G ırez, omez Ram ́ ́ Jamshed A. Hamid, Arturo Hern andez-Basave, Ibrahim Idriss, Hassan Kassem ́ Jouni, Kenneth Keith, Githu Muigai, Rein M ullerson, Bara Niang, Mohamed ̈ ad Olwan, Raul C. Pangalangan, Stelios Perrakis, Paulo Sergio Pinheiro, Arp ́ Prandler, Pemmaraju Sreenivasa Rao, Camilo Reyes Rodr ıguez, Itse E. Sagay, ́ Harold Sandoval, Somboon Sangianbut, Marat A. Sarsembayev, Muhammad Aziz Shukri, Parlaungan Sihombing, Geoffrey James Skillen, Guoshun Sun, Bakhtyar Tuzmukhamedov and Karol Wolfke. ICRC Research Team Numerous persons at the ICRC have worked on the study doing research, checking information and providing editorial assistance, in particular for Vol- ume II. Etienne Antheunissens and Tudor Hera carried out research into the ICRC archives. Carolin Alvermann, Sarah Avrillaud, Gilles Benedick, Joanna Bourke-Martignioni, Angela Cotroneo, Eloi Fillion, Emanuela-Chiara Gillard, Neal Gilmore, Antoine Grand, Val erie Houetz, David Kootz, Carine Nassif, ́ Anna Nuiten, Aur elie Legrand, Franc ̧ ois Moreillon, St ephane Ojeda, Guil- ́ ́ hem Ravier, Baptiste Rolle, Ion Smochina, Nadine Thwaites, Huyghen van den Eertwegh and Barbara Van der Beken contributed to the final version of

30 xxix Acknowledgements Volume II during different stages of the long writing process. In so doing, they benefited from the assistance of Laila Bahaa-el-Din, Namuezi Fedi, Tristan Fer- raro, Marie-Eve Friedrich, Francisco-Javier Leon-Diaz and Nathalie Stadelmann and from numerous ICRC staff members in the field who provided additional information on national legislation and case-law. J er emie Labbe Grenier, Yas- ́ ́ mine Hadjoudj, Haleh Mehran and Tobias Schaffner completed the final ardu- ous task of checking the footnotes of Volume I. All these people amply deserve a heartfelt “thank you”. Research would not have been possible without the assistance of Monica Cometti, Magalie Develon, Florence Gaspar, Brigitte Gremaud and Jean Perre- noud at the ICRC Information and Documentation Center, as well as all the staff at the UN Library in Geneva, in particular Werner Simon, and Jan Hlad ık ́ at UNESCO Headquarters in Paris. In addition, we would like to thank Patricia Barbey, Lydie Beguelin, Vojislava Bursac, Ren ee Bretton, S everine Mueller-Moine, Christine Pellaton, ́ ́ Janine Rossier, Elodie Straub, Sandrine Wagner and Nina Zufferey for providing indispensable administrative support. We are also very grateful to all our colleagues, and former colleagues, at the ICRC who so generously gave of their time to review the drafts of Volume I and who provided many insightful comments, including Raoul Bittel, Serge e d’Aprikle, Richard Bourgeois, Laurent Colassis, Isabelle Daoust, Marie-Jos ́ Desgagn e, Annemarie Dick, Knut D ormann, Mar ıa Teresa Dutli, Alexandre ̈ ́ ́ Faite, Emanuela-Chiara Gillard, Thomas Graditzky, Paul Hardy, Peter Herby, Rikke Ishøy, Bertrand Levrat, Charlotte Lindsey-Curtet, Barbara Jaeggi, Isabelle Kuntziger, Jean-Philippe Lavoyer, Kathleen Lawand, Dominique Loye, Louis Maresca, Nils Melzer, Laura Olson, Jelena Pejic, Cristina Pellandini, Gabor Rona, Anne Ryniker, Silvia Schaller, Anna Segall, Philip Spoerri, Sylvie van Lammeren and Ameur Zemmali. A very special word of thanks is due to Knut D ormann, Emanuela-Chiara ̈ Gillard, Laura Olson, Gabor Rona and Jelena Pejic who read and commented on all the drafts and provided invaluable support throughout the writing process. We owe a special debt of gratitude for the advice and constructive criticism from Maurice Mendelson and Karol Wolfke, who reviewed the introductory part on the assessment of customary international law, and from Sadi C ̧ ayc y, ́ Edward Cummings, Eric David, Yoram Dinstein, William Fenrick, Dieter Fleck, Juan Carlos G ırez, Michael Meyer, Theodor Meron, Raul Pangalan- omez Ram ́ ́ gan, Peter Rowe, Milan ahovi c, Marat Sarsembaev, Helen Upton, Elizabeth ́ Wilmshurst and Karol Wolfke for their comments on different drafts of Vol- ume I and Jan Hlad ık at UNESCO for reviewing the draft chapter on cultural ́ property. Special thanks are also due to Knut D ormann, Horst Fischer, Theodor Meron, ̈ the Mines and Arms Unit of the ICRC led by Peter Herby, William Fenrick and Antonio Cassese for reviewing Parts I–VI of Volumes I and II respectively.

31 xxx Acknowledgements The authors express their genuine appreciation to Franc ̧ ois Bugnion, Jean- Philippe Lavoyer and Yves Sandoz for their advice, comments and support throughout the genesis of this study. Lastly our sincere gratitude goes to Christina Grisewood for the monumental task of copy-editing both Volumes I and II, to Philippa Youngman, who prepared the copy for typesetting, and the staff at Cambridge University Press, in partic- ular Finola O’Sullivan for supervising publication and Neil de Cort and Alison Powell for overseeing the production. This study would not have been possible without the patience, support and encouragement of Mei and Josef. Geneva, August 2004 Jean-Marie Henckaerts Louise Doswald-Beck

32 INTRODUCTION International humanitarian law has its origins in the customary practices of armies as they developed over the ages and on all continents. The “laws and customs of war”, as this branch of international law has traditionally been a-vis all enemies, called, was not applied by all armies, and not necessarily vis- ` nor were all the rules the same. However, the pattern that could typically be found was restraint of behaviour vis- a-vis combatants and civilians, primarily ` based on the concept of the soldier’s honour. The content of the rules generally included the prohibition of behaviour that was considered unnecessarily cruel or dishonourable, and was not only developed by the armies themselves, but was also influenced by the writings of religious leaders. The most significant landmark from the point of view of cataloguing these customs in one document was the drafting by Professor Francis Lieber of the Instructions for the Government of Armies of the United States in the Field, promulgated as General Order No. 100 by President Lincoln in 1863 during the American Civil War. The Lieber Code, as it is now known, strongly influenced the further codification of the laws and customs of war and the adoption of similar regulations by other States. Together, they formed the basis of the draft of an international convention on the laws and customs of war presented to the Brussels Conference in 1874. Although this conference did not adopt a binding treaty, much of its work was later used in the development of the 1899 and 1907 Hague Conventions and Declarations. These treaties did not codify all aspects of custom, but its continued importance was reaffirmed in the so-called “Martens clause”, first inserted in the preamble to the 1899 Hague Convention (II), which provides that: Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. The importance attributed to customary law, despite, or because of, its partial codification, was most clearly seen in the reliance placed on it by the various 1 war crimes trials after both the First and Second World Wars. 1 See Knut D ormann, Elements of War Crimes under the Rome Statute of the International Crim- ̈ inal Court: Sources and Commentary , Cambridge University Press, 2003. xxxi

33 xxxii Introduction The driving force behind the development of international humanitarian law has been the International Committee of the Red Cross (ICRC), founded in 1863. It initiated the process which led to the conclusion of the Geneva Con- ventions for the protection of the victims of war of 1864, 1906, 1929 and 1949. It was at the origin of the 1899 Hague Convention (III) and 1907 Hague Conven- tion (X), which adapted, respectively, the 1864 and 1906 Geneva Conventions to maritime warfare and were the precursors of the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Mem- bers of Armed Forces at Sea of 1949. It took the initiative to supplement the Geneva Conventions that led to the adoption in 1977 of two Additional Pro- tocols. The ICRC has both encouraged the development of and been involved in the negotiation of numerous other treaties, such as the 1980 Convention on Certain Conventional Weapons, the 1997 Ottawa Convention banning anti- personnel landmines and the 1998 Statute of the International Criminal Court. Recognition of this role is reflected in the mandate given to the ICRC by the international community to work for “the faithful application of international humanitarian law applicable in armed conflicts” and for “the understanding and dissemination of knowledge of international humanitarian law applicable 2 in armed conflicts and to prepare any development thereof”. More than 50 years have now passed since the Geneva Conventions of 1949 were adopted and almost 30 years since the adoption of their Additional Proto- cols. These years have, unfortunately, been marked by a proliferation of armed conflicts affecting every continent. Throughout these conflicts, the Geneva Conventions – and in particular Article 3 common to the four Conventions, applicable in non-international armed conflicts – together with their Addi- tional Protocols have provided legal protection to war victims, namely per- sons who do not or no longer participate in hostilities (the wounded, sick and shipwrecked, persons deprived of their liberty for reasons related to the conflict, and civilians). Nevertheless, there have been countless violations of these treaties and of basic humanitarian principles, resulting in suffering and 2 Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th Inter- national Conference of the Red Cross, Geneva, 23–31 October 1986, Article 5(2)(c) and (g) respec- tively. The Statutes were adopted by the States party to the Geneva Conventions and the mem- bers of the International Red Cross and Red Crescent Movement. This mandate was first given to the ICRC by Article 7 of the Statutes of the International Red Cross adopted by the 13th International Conference of the Red Cross, The Hague, 23–27 October 1928, according to which “all complaints in regard to alleged violations of the international Conventions, and in general, all questions calling for examination by a specifically neutral body, shall remain the exclusive province of the International Committee of the Red Cross”. Subsequently, Article 6(4) and (7) of the Statutes of the International Red Cross adopted by the 18th International Conference of the Red Cross, Toronto, 22 July–8 August 1952, stated that the ICRC “undertakes the tasks incum- bent on it under the Geneva Conventions, works for the faithful application of these Conventions and takes cognizance of complaints regarding alleged breaches of the humanitarian Conventions” and “works for the continual improvement and diffusion of the Geneva Conventions”.

34 xxxiii Introduction death which might have been avoided had international humanitarian law been respected. The general opinion is that violations of international humanitarian law are not due to the inadequacy of its rules, but rather to a lack of willingness to respect them, to a lack of means to enforce them and to uncertainty as to their application in some circumstances, but also to ignorance of the rules on the part of political leaders, commanders, combatants and the general public. The International Conference for the Protection of War Victims, convened in Geneva from 30 August to 1 September 1993, discussed, in particular, ways and means to address violations of international humanitarian law but did not propose the adoption of new treaty provisions. Instead, in its Final Declaration, adopted by consensus, the Conference reaffirmed “the necessity to make the implementation of humanitarian law more effective” and called upon the Swiss government “to convene an open-ended intergovernmental group of experts to study practical means of promoting full respect for and compliance with that law, and to prepare a report for submission to the States and to the next session 3 of the International Conference of the Red Cross and Red Crescent”. To this end, the Intergovernmental Group of Experts for the Protection of War Victims met in Geneva in January 1995 and adopted a series of recom- mendations aimed at enhancing respect for international humanitarian law, in particular by means of preventive measures that would ensure better knowl- edge and more effective implementation of the law. Recommendation II of the Intergovernmental Group of Experts proposed that: The ICRC be invited to prepare, with the assistance of experts in IHL [international humanitarian law] representing various geographical regions and different legal sys- tems, and in consultation with experts from governments and international organ- isations, a report on customary rules of IHL applicable in international and non- international armed conflicts, and to circulate the report to States and competent 4 international bodies. In December 1995, the 26th International Conference of the Red Cross and Red Crescent endorsed this recommendation and officially mandated the ICRC to prepare a report on customary rules of international humanitarian law appli- 5 cable in international and non-international armed conflicts. The present study is the outcome of the research carried out pursuant to this mandate. 3 International Conference for the Protection of War Victims, Geneva, 30 August–1 September 1993, Final Declaration, International Review of the Red Cross , No. 296, 1993, p. 381. 4 Meeting of the Intergovernmental Group of Experts for the Protection of War Victims, Geneva, 23–27 January 1995, Recommendation II, International Review of the Red Cross , No. 310, 1996, p. 84. 5 26th International Conference of the Red Cross and Red Crescent, Geneva, 3–7 December 1995, Resolution 1, International humanitarian law: From law to action; Report on the follow-up to the International Conference for the Protection of War Victims, International Review of the Red Cross , No. 310, 1996, p. 58.

35 xxxiv Introduction Purpose of the study International humanitarian treaty law is well developed and covers a wide vari- ety of aspects of warfare, offering protection to victims of war and limiting permissible means and methods of warfare. The four Geneva Conventions of 1949 and their Additional Protocols of 1977 provide an extensive regime for the protection of persons who do not or no longer participate in armed conflict. The regulation of the means and methods of warfare in treaty law goes back to the 1868 St. Petersburg Declaration, the 1899 and 1907 Hague Conventions and the 1925 Geneva Gas Protocol and has most recently been addressed in the 1972 Biological Weapons Convention, the 1977 Additional Protocols, the 1980 Convention on Certain Conventional Weapons and its five Protocols, the 1993 Chemical Weapons Convention and the 1997 Ottawa Convention banning anti-personnel landmines. The protection of cultural property in the event of armed conflict is regulated in detail in the 1954 Hague Convention and its two Protocols. The 1998 Statute of the International Criminal Court contains a list of war crimes subject to its jurisdiction. There are, however, two important impediments to applying these treaties to current armed conflicts. First, treaties apply only to the States that have ratified them. This means that different treaties of international humanitarian law apply to different armed conflicts depending on which treaties the States involved have ratified. While nearly all States have ratified the four Geneva Conventions of 1949, Additional Protocol I has not yet gained universal adher- ence. As the Protocol is applicable only between parties to a conflict that have ratified it, its efficacy today is limited because several States that have been involved in international armed conflicts are not a party to it. Similarly, Addi- tional Protocol II is only applicable in armed conflicts taking place on the territory of a State that has ratified it. While some 150 States have ratified this Protocol, several States in which non-international armed conflicts are taking place have not. In these non-international armed conflicts, common Article 3 of the four Geneva Conventions often remains the only applicable treaty provision. Secondly, this wealth of treaty law does not regulate a large proportion of today’s armed conflicts in sufficient detail. The primary reason for this is that the majority of current armed conflicts are non-international, which are subject to far fewer treaty rules than international conflicts, although their number is increasing. In fact, only a limited number of treaties apply to non-international armed conflicts, namely the Convention on Certain Conventional Weapons, as amended, the Statute of the International Criminal Court, the Ottawa Con- vention banning anti-personnel landmines, the Chemical Weapons Conven- tion, the Hague Convention for the Protection of Cultural Property and its Sec- ond Protocol and, as already mentioned, Additional Protocol II and Article 3 common to the four Geneva Conventions. While common Article 3 is of

36 xxxv Introduction fundamental importance, it only provides a rudimentary framework of min- imum standards and does not contain much detail. Additional Protocol II use- fully supplements common Article 3, but it is still less detailed than the rules governing international armed conflicts contained in Additional Protocol I. Additional Protocol II contains a mere 15 substantive articles, whereas Addi- tional Protocol I has more than 80. These figures may not be all important, but they nonetheless show that there is a significant difference in terms of regu- lation between international and non-international armed conflicts, with the latter suffering from a lack of rules, definitions, details and requirements in treaty law. This is the prevailing situation, even though the majority of armed conflicts today are non-international. Specifically, Additional Protocol II contains only a very rudimentary regula- tion of the conduct of hostilities. Article 13 provides that “the civilian popula- tion as such, as well as individual civilians, shall not be the object of attack . . . unless and for such time as they take a direct part in hostilities”. Unlike Addi- tional Protocol I, Additional Protocol II does not contain, however, specific rules and definitions with respect to the principles of distinction and propor- tionality. Common sense would suggest that such rules, and the limits they impose on the way war is waged, should be equally applicable in international and non- international armed conflicts. The fact that in 2001 the Convention on Certain Conventional Weapons was amended to extend its scope to non-international armed conflicts is an indication that this notion is gaining currency within the international community. This study provides evidence that many rules of customary international law apply in both international and non-international armed conflicts and shows the extent to which State practice has gone beyond existing treaty law and expanded the rules applicable to non-international armed conflicts. In par- ticular, the gaps in the regulation of the conduct of hostilities in Additional Protocol II have largely been filled through State practice, which has led to the creation of rules parallel to those in Additional Protocol I, but applicable as customary law to non-international armed conflicts. Knowledge of the rules of customary international law is therefore of use to the many actors involved in the application, dissemination and enforcement of international humanitarian law, such as governmental authorities, arms bear- ers, international organisations, components of the International Red Cross and Red Crescent Movement and non-governmental organisations. A study on customary international humanitarian law may also be helpful in reducing the uncertainties and the scope for argument inherent in the concept of customary international law. Knowledge of the rules of customary international law may also be of ser- vice in a number of situations where reliance on customary international law is required. This is especially relevant for the work of courts and international

37 xxxvi Introduction organisations. Indeed, courts are frequently required to apply customary inter- national law. This is the case, for example, for the International Criminal Tri- bunal for the Former Yugoslavia which, pursuant to Article 3 of its Statute, has jurisdiction over violations of the laws and customs of war. As a result, the Tri- bunal has had to determine whether certain violations of international human- itarian law were violations under customary international law over which the Tribunal has jurisdiction. In addition, in many countries, customary interna- tional law is a source of domestic law and can be invoked before and adjudicated by national courts. Customary international law is also relevant to the work of international organisations in that it generally represents the law binding upon all member States. Scope of the study This study has not sought to determine the customary nature of each treaty rule of international humanitarian law and, as a result, does not necessarily follow the structure of existing treaties. Rather, it has sought to analyse issues in order to establish what rules of customary international law can be found inductively on the basis of State practice in relation to these issues. As the approach chosen does not analyse each treaty provision with a view to estab- lishing whether or not it is customary, it cannot be concluded that any partic- ular treaty rule is not customary merely because it does not appear as such in this study. In this regard, it is important to note that the great majority of the provisions of the Geneva Conventions of 1949, including common Article 3, are considered to be customary law, and the same is true for the 1907 Hague Regu- lations (see ). Furthermore, given that the Geneva Conventions have now infra been ratified by 192 States, they are binding on nearly all States as a matter of treaty law. It was decided not to research customary law applicable to naval warfare as this area of law was recently the subject of a major restatement, namely the San 6 Remo Manual on Naval Warfare. The general rules contained in the manual were nevertheless considered useful for the assessment of the customary nature of rules that apply to all types of warfare. A number of topics could not be developed in sufficient detail for inclusion in this edition, but they might be included in a future update. These include, for example, the Martens clause, identification of specifically protected persons and objects, and civil defence. Where relevant, practice under international human rights law has been included in the study. This was done because international human rights law 6 Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed Con- flicts at Sea , Prepared by international lawyers and naval experts convened by the International Institute of Humanitarian Law, Cambridge University Press, 1995.

38 xxxvii Introduction continues to apply during armed conflicts, as indicated by the express terms of the human rights treaties themselves, although some provisions may, sub- ject to certain conditions, be derogated from in time of public emergency. The continued applicability of human rights law during armed conflict has been confirmed on numerous occasions by the treaty bodies that have analysed State behaviour, including during armed conflict, and by the International Court of Justice (see introduction to Chapter 32). This study does not purport, how- ever, to provide an assessment of customary human rights law. Instead, human rights law has been included in order to support, strengthen and clarify anal- ogous principles of international humanitarian law. In addition, while they remain separate branches of international law, human rights law and interna- tional humanitarian law have directly influenced each other, and continue to do so, and this for mainly three reasons. First, an assessment of conformity with human rights law at times involves a determination of respect for or breach of international humanitarian law. For example, measures taken in states of inter alia , they violate emergency will be unlawful under human rights law if, 7 international humanitarian law. Conversely, international humanitarian law contains concepts the interpretation of which needs to include a reference to human rights law, for example, the provision that no one may be convicted of a crime other than by a “regularly constituted court affording all the judicial 8 guarantees which are recognised as indispensable”. Secondly, human rights- type provisions are to be found in international humanitarian law, for example, Article 75 of Additional Protocol I and Articles 4 and 6 of Additional Protocol II, and humanitarian law-type provisions are to be found in human rights law, for example, the provisions on child soldiers in the Convention on the Rights of the Child and its Protocol on the Involvement of Children in Armed Con- flict. Thirdly, and most significantly, there is extensive practice by States and by international organisations commenting on the behaviour of States during 9 armed conflict in the light of human rights law. Assessment of customary international law The Statute of the International Court of Justice describes customary interna- 10 tional law as “a general practice accepted as law”. It is generally agreed that 7 Article 4 of the International Covenant on Civil and Political Rights, Article 15 of the European Convention on Human Rights and Article 27 of the American Convention on Human Rights all state that derogation measures by States must not be “inconsistent with their other obligations under international law”. The African Charter on Human and Peoples’ Rights does not allow for derogation. 8 Common Article 3(1)(d) of the Geneva Conventions of 1949. 9 See, in particular, Chapter 32 on Fundamental Guarantees. 10 ICJ Statute, Article 38(1)(b).

39 xxxviii Introduction the existence of a rule of customary international law requires the presence of two elements, namely State practice ( usus ) and a belief that such practice is required, prohibited or allowed, depending on the nature of the rule, as a opinio juris sive necessitatis ). As the International Court of Jus- matter of law ( Continental Shelf case : “It is of course axiomatic that the tice stated in the material of customary international law is to be looked for primarily in the 11 of States.” actual practice and opinio juris The exact meaning and content of these two elements has been the subject of much academic writing. The approach taken in this study to determine whether a rule of general customary international law exists is a classic one, set out by the International Court of Justice in a number of cases, in particular in the North Sea Continental Shelf 12 cases . State practice In the assessment of State practice, two separate issues need to be addressed, namely the selection of practice that contributes to the creation of customary international law and the assessment of whether this practice establishes a rule of customary international law. Selection of State practice The practice collected for the purpose of this study, and which is summarised in Volume II, was selected on the basis of the following criteria. (i) Both physical and verbal acts of States constitute practice that con- tributes to the creation of customary international law. Physical acts include, for example, battlefield behaviour, the use of certain weapons and the treat- ment provided to different categories of persons. Verbal acts include mili- tary manuals, national legislation, national case-law, instructions to armed and security forces, military communiqu es during war, diplomatic protests, ́ opinions of official legal advisers, comments by governments on draft treaties, executive decisions and regulations, pleadings before international tribunals, statements in international organisations and at international conferences and government positions taken with respect to resolutions of international organisations. The approach to consider both physical and verbal acts as practice follows that taken by leading bodies in the field of international law and by States themselves. The International Court of Justice has taken into consideration official statements as State practice in a number of cases, including the Fisheries 11 ICJ, Continental Shelf case (Libyan Arab Jamahiriya v. Malta) , Judgement, 3 June 1985, ICJ Reports 1985 , pp. 29–30, § 27. 12 ICJ, North Sea Continental Shelf cases , Judgement, 20 February 1969, ICJ Reports 1969 ,p.3.

40 xxxix Introduction 13 14 ˇ ́ , and the Gab Nicaragua case c , ıkovo-Nagymaros Jurisdiction cases the 15 Project case . The International Law Commission has similarly considered verbal acts of States as contributing towards the creation of customary international law. It did so, for example, in the context of the Draft Articles on State Responsibility 16 where it considered the concept of a “state of necessity” to be customary. The International Criminal Tribunal for the Former Yugoslavia has stated that in appraising the formation of customary rules of international human- itarian law, “reliance must primarily be placed on such elements as official 17 pronouncements of States, military manuals and judicial decisions”. The International Law Association considers that “verbal acts, and not only physical acts, of States count as State practice” and points out that “the practice of the international tribunals is replete with examples of verbal acts being treated as examples of practice. Similarly, States regularly treat this sort of act 18 in the same way.” official Whether physical or verbal, relevant practice only consists of practice. Hence, the physical acts of parties to armed conflicts contribute only to the 13 ICJ, Fisheries Jurisdiction case (United Kingdom v. Iceland) , Joint separate opinion of Judges , p. 47; enez de Ar ICJ Reports 1974 echaga, Singh and Ruda, 25 July 1974, Forster, Bengzon, Jim ́ ́ ICJ Reports 1974 , pp. 56–58; Separate opinion of Separate opinion of Judge Dillard, 25 July 1974, Judge De Castro, 25 July 1974, , pp. 81–88; Separate opinion of Judge Waldock, ICJ Reports 1974 25 July 1974, ICJ Reports 1974 , pp. 119–120; Dissenting opinion of Judge Gros, 25 July 1974, ICJ Reports 1974 , p. 135; Dissenting opinion of Judge Petr , en, 25 July 1974, ICJ Reports 1974 ́ p. 161. The judges inferred the existence of customary rules from claims made to areas of the sea, without considering whether they had been enforced; see also the opinions of the same judges in the , 25 July 1974, ICJ Fisheries Jurisdiction case (Federal Republic of Germany v. Iceland) Reports 1974 , p. 175. 14 ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua , Merits, Judgement, 27 June 1986, ICJ Reports 1986 , p. 100, § 190. The Court v. United States) found further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2(4) of the UN Charter in the fact that it was “frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law”. 15 ́ ˇ ICJ, Case concerning the Gab c ıkovo-Nagymaros Project (Hungary v. Slovakia) , Judgement, 25 September 1997, ICJ Reports 1997 , pp. 39–46, §§ 49–58. The Court declared the customary nature of the concept of a “state of necessity”, which could preclude the wrongfulness of an act not in conformity with international law. In so doing, the Court relied on materials, including many official statements, used by the ILC in drafting the corresponding article of the Draft Articles on State Responsibility. 16 ILC, Draft Articles on State Responsibility, Yearbook of the ILC , 1980, Vol. II, Part 2, UN Doc. A/CN.4/SER.A/1980/Add.1 (Part 2), 1980, pp. 34–52. The ILC based its conclusions on Yearbook of statements of government representatives or lawyers. For another example, see the ILC , 1950, Vol. II, pp. 368–372. The Commission referred to the following categories of evidence of customary international law: international instruments, decisions of national and international courts and national legislation, as well as to diplomatic correspondence, opinions of national legal advisers and the practice of international organisations. 17 ́ Tadi , Case No. IT-94-AR72, Decision on the defence motion for interlocutory c case ICTY, appeal on jurisdiction, 2 October 1995, § 99. 18 ILA, Final Report of the Committee on the Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Report of the Sixty-Ninth Conference, London, 2000, Principle 4 and commentary (a) thereto, pp. 725–726 (hereinafter “ILA Report”).

41 xl Introduction creation of rules of customary international law as long as they represent official practice. Abstention from certain conduct is also noted where relevant. Such omis- sions will be discussed in more detail below. (ii) The practice of the executive, legislative and judicial organs of a State can contribute to the formation of customary international law. The State comprises the executive, legislative and judicial branches of government. The organs of these branches can engage the international responsibility of 19 the State and adopt positions that affect its international relations. In case of conflict between the positions of various organs of a State, the practice is considered internally inconsistent and does not contribute to the formation of customary law. (iii) Acts do not contribute to the formation of customary international law 20 if they are never disclosed. This is so as long as such acts are not known to other States and, consequently, do not give them an opportunity, if they so wished, to react to them. In order to count, practice has to be public or com- municated to some extent. This does not necessarily mean that the practice has to be published or communicated to the whole world, but at least it should be communicated to one other State or relevant international organisation, including the ICRC. States communicate with the ICRC in the context of its international mandate to assist in the implementation of international human- itarian law and the fact that it may “take cognizance of any complaints based 21 on alleged breaches of [international humanitarian law]”. Hence, communi- cations to the ICRC, while often confidential, are not purely private acts and count as State practice. (iv) Although decisions of international courts are subsidiary sources of inter- 22 national law, they do not constitute State practice. This is because, unlike national courts, international courts are not State organs. Their decisions have nevertheless been included because a finding by an international court that a rule of customary international law exists constitutes persuasive evidence to that effect. In addition, because of the precedential value of their decisions, international courts can also contribute to the emergence of a rule of customary international law by influencing the subsequent practice of States and interna- tional organisations. 19 For a more elaborate reasoning and references to international case-law on this point, see ILA Report, supra note 18, Principle 9, pp. 728–729, referring to PCIJ, Nottebohm case (second phase) (Liechtenstein v. Guatemala) , Judgement, 6 April 1955, ICJ Reports 1955 , p. 22 and the Lotus case (France v. Turkey) , Judgement, 7 September 1927, PCIJ Ser. A, No. 10, pp. 23, 26 and 28–29. 20 See, e.g., ILA Report, supra note 18, Principle 5, p. 726. 21 Statutes of the International Red Cross and Red Crescent Movement, supra note 2, Article 5(2)(c). 22 ICJ Statute, Article 38(1)(d).

42 Introduction xli What States claim before international courts, however, is clearly a form of State practice. (v) International organisations have international legal personality and can participate in international relations in their own capacity, independently of their member States. In this respect, their practice can contribute to the for- 23 mation of customary international law. Therefore, this study has included, for example, the UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law as relevant practice, in par- ticular because “the instructions in the Bulletin reflect the quintessential and most fundamental principles of the laws and customs of war”, even though it is recognised that “the Secretary-General did not consider himself necessarily constrained by the customary international law provisions of the Conventions and Protocols as the lowest common denominator by which all national con- 24 tingents would otherwise be bound”. In addition, official ICRC statements, in particular appeals and memoranda on respect for international humanitarian law, have been included as rel- 25 evant practice because the ICRC has international legal personality. The practice of the organisation is particularly relevant in that it has received an official mandate from States “to work for the faithful application of interna- tional humanitarian law applicable in armed conflicts and . . . to prepare any 26 development thereof”. The view that ICRC practice counts is also adopted by the International Criminal Tribunal for the Former Yugoslavia, which has regarded the organisation’s practice as an important factor in the emer- 27 gence of customary rules applicable to non-international armed conflicts. In addition, the official reactions which ICRC statements elicit are State practice. (vi) The negotiation and adoption of resolutions by international organisa- tions or conferences, together with the explanations of vote, are acts of the States involved. With a few exceptions, it is recognised that resolutions are normally not binding in themselves and therefore the value accorded to any particular resolution depends on its content, its degree of acceptance and the 23 See, e.g., ICJ, Case concerning Reservations to the Convention on Genocide , Advisory Opinion, 28 May 1951, ICJ Reports 1951 , p. 25. The Court took into account the depository practice of the UN Secretary-General. 24 Daphna Shraga, “UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage”, American Journal of International Law , Vol. 94, 2000, p. 408. 25 ́ The Prosecutor v. Blagoje Simi See, e.g., ICTY, c et al. , Case No. IT-95–9-PT, Decision on the prosecution motion under Rule 73 for a ruling concerning the testimony of a witness, 27 July 1999, released as a public document by Order of 1 October 1999, § 46 and footnote 9. 26 Statutes of the International Red Cross and Red Crescent Movement, supra note 2, Article 5(2)(c) and (g). 27 ́ ICTY, Tadi c case, supra note 17, § 109.

43 xlii Introduction 28 The greater the support for the res- consistency of State practice outside it. olution, the more importance it is to be accorded. Information on reasons for abstentions or negative votes is therefore indicated in this study where rele- vant, for such votes are often based on disagreement with certain parts of the resolution and not necessarily with the resolution as a whole. Likewise, state- ments made by States during debates on the drafting of resolutions constitute State practice and have been included where relevant. (vii) The practice of armed opposition groups, such as codes of conduct, commitments made to observe certain rules of international humanitarian law and other statements, does not constitute State practice as such. While such practice may contain evidence of the acceptance of certain rules in non- international armed conflicts, its legal significance is unclear and it has there- fore been listed under “Other Practice” in Volume II. Assessment of State practice State practice has to be weighed to assess whether it is sufficiently “dense” to 29 create a rule of customary international law. To establish a rule of custom- ary international law, State practice has to be virtually uniform, extensive and representative. Although some time will normally elapse before there is suffi- cient practice to satisfy these criteria, no precise amount of time is required. North Sea Continental As stated by the International Court of Justice in the : Shelf cases Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule 30 of law or legal obligation is involved. (i) The first requirement for State practice to create a rule of customary interna- tional law is that it must be virtually uniform . Different States must not have engaged in substantially different conduct, some doing one thing and some Asylum case , the International Court of Justice was presented another. In the with a situation in which practice was not sufficiently uniform to establish a rule of customary international law with respect to the exercise of diplomatic asylum. In this respect, it stated that: 28 The importance of these conditions was stressed by the ICJ in the , Nuclear Weapons case Advisory Opinion, 8 July 1996, ICJ Reports 1996 , pp. 254–255, §§ 70–73. 29 The expression comes from Sir Humphrey Waldock, “General Course on Public International Law”, Collected Courses of the Hague Academy of International Law , Vol. 106, 1962, p. 44. 30 ICJ, North Sea Continental Shelf cases, supra note 12, p. 43, § 74.

44 Introduction xliii The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplo- matic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, accepted as 31 law. , the International Court of Justice dealt with a similar In the Fisheries case situation with respect to a ten-mile closing line for bays in which it considered that, although such a line had been adopted by certain States both in their national law and in their treaties and conventions, and although certain arbitral decisions have applied it as between these States, other States have adopted a different limit. Consequently, the ten- 32 mile rule has not acquired the authority of a general rule of international law. However, the Court in this case also considered that “too much importance need not be attached to a few uncertainties or contradictions, real or apparent” 33 in a State’s practice when making an evaluation. It is enough that the practice is sufficiently similar. It was on the basis of such sufficient similarity that the Continental Shelf cases that the International Court of Justice found in the concept of the exclusive economic zone had become part of customary law. Even though the various proclamations of such a zone were not identical, they 34 were sufficiently similar for the Court to reach this conclusion. The jurisprudence of the International Court of Justice shows that contrary practice which, at first sight, appears to undermine the uniformity of the prac- tice concerned, does not prevent the formation of a rule of customary inter- national law as long as this contrary practice is condemned by other States or denied by the government itself and therefore does not represent its official practice. Through such condemnation or denial, the original rule is actually confirmed. The International Court of Justice dealt with such a situation in Nicaragua case in which it looked at the customary nature of the princi- the ples of non-use of force and non-intervention, stating that: It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs. The Court does not consider that, for a rule to be established as cus- tomary, the corresponding practice must be in absolute rigorous conformity with 31 ICJ, Asylum case (Colombia v. Peru) , Judgement, 20 November 1950, ICJ Reports 1950 , p. 277. 32 Fisheries case (United Kingdom v. Norway) , Judgement, 18 December 1951, ICJ Reports ICJ, 1951 , p. 131. 33 Ibid. p. 138. 34 ICJ, Continental Shelf case (Tunisia v. Libyan Arab Jamahiriya) , Judgement, 24 February 1982, ICJ Reports 1982 , p. 74, § 100 and Continental Shelf case, supra note 11, p. 33, § 34.

45 xliv Introduction the rule. In order to deduce the existence of customary rules, the Court deems it suf- ficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken 35 the rule. This finding is particularly relevant for a number of rules of international humanitarian law where there is overwhelming evidence of verbal State prac- tice supporting a certain rule found alongside repeated evidence of violations of that rule. Where this has been accompanied by excuses or justifications by the actors and/or condemnations by other States, such violations are not of a nature to challenge the existence of the rule in question. States wishing to change an existing rule of customary international law have to do so through official practice and claim to be acting as of right . their (ii) The second requirement for a rule of general customary international law to come into existence is that the State practice concerned must be both exten- sive and representative . It does not, however, need to be universal; a “general” 36 practice suffices. No precise number or percentage of States is required. One reason why it is impossible to put a precise figure on the extent of participation qualitative rather than quantitative. required is that the criterion is in a sense That is to say, it is not simply a question of how many States participate in 37 which States. the practice, but also In the words of the International Court of Justice in the , the practice must “include North Sea Continental Shelf cases 38 that of States whose interests are specially affected”. This consideration has two implications: (1) if all “specially affected States” are represented, it is not essential for a majority of States to have actively par- ticipated, but they must have at least acquiesced in the practice of “specially affected States”; (2) if “specially affected States” do not accept the practice, it cannot mature into a rule of customary international law, even though unanim- 39 ity is not required as explained. Who is “specially affected” will vary according to circumstances. Concerning the question of the legality of the use of blinding laser weapons, for example, “specially affected States” include those identi- fied as having been in the process of developing such weapons. In the area of humanitarian aid, States whose population is in need of such aid or States which 35 ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua, supra note 14, p. 98, § 186. 36 ILA Report, supra note 18, Principle 14, p. 734. 37 ILA Report, supra note 18, commentary (d) and (e) to Principle 14, pp. 736–737. 38 ICJ, North Sea Continental Shelf cases, supra note 12, p. 43, § 74. 39 ILA Report, supra note 18, commentary (e) to Principle 14, p. 737.

46 Introduction xlv frequently provide such aid are to be considered “specially affected”. With respect to any rule of international humanitarian law, countries that partic- ipated in an armed conflict are “specially affected” when their practice exam- ined for a certain rule was relevant to that armed conflict. Notwithstanding the fact that there are specially affected States in certain areas of international humanitarian law, it is also true that all States have a legal interest in requir- ing respect for international humanitarian law by other States, even if they are not a party to the conflict (see the commentary to Rule 144). As a result, the practice of all States must be considered, whether or not they are “specially affected” in the strict sense of that term. This study has taken no view as to whether it is legally possible to be a “per- sistent objector” in relation to customary rules of international humanitarian law. Apart from the fact that many authorities believe that this is not possible jus cogens , there are also authorities that doubt the con- in the case of rules of 40 tinued validity of this doctrine. If one accepts that it is legally possible to be a persistent objector, the State concerned must have objected to the emergence of a new norm during its formation and continue to object afterwards; it is not possible to be a “subsequent objector”. (iii) The third requirement is related to the time necessary to form a rule of customary international law through the adoption of virtually uniform, exten- sive and representative practice. As indicated above, while some time will nor- mally elapse before there is sufficient practice to satisfy these criteria, there is no specific time requirement. It is all a question of accumulating a practice of 41 sufficient density, in terms of uniformity, extent and representativeness. Opinio juris The second requirement for the existence of a rule of customary international opinio juris as of right . law, , relates to the need for the practice to be carried out The particular form in which the practice and this legal conviction needs to be expressed may well differ depending on whether the rule involved contains a prohibition, an obligation or merely a right to behave in a certain manner. Practice establishing the existence of a prohibition, for example, the rule that it is prohibited to declare that no quarter will be given (see Rule 46), includes not only statements that such behaviour is prohibited and condemnations of instances where the prohibited behaviour did take place, possibly combined with justifications or excuses from the criticised State, but also physical prac- tice abstaining from the prohibited behaviour. If the practice largely consists of abstention combined with silence, there will need to be some indication 40 For an in-depth discussion of this issue, see Maurice H. Mendelson, “The Formation of Cus- tomary International Law”, Collected Courses of the Hague Academy of International Law , Vol. 272, 1998, pp. 227–244. 41 ILA Report, supra note 18, commentary (b) to Principle 12, p. 731.

47 xlvi Introduction that the abstention is based on a legitimate expectation to that effect from the international community. Practice establishing the existence of an obligation, for example, the rule that the wounded and sick must be cared for (see Rule 110), can be found primarily in behaviour in conformity with such a requirement. The fact that it is a legal requirement, rather than one reflecting courtesy or mere comity, can be found by either an expression of the need for such behaviour, or by criticism by other States in the absence of such behaviour. It may also be that, following criticism by other States, the criticised State will explain its abstinence by seeking justification within the rule. Practice establishing the existence of a rule that allows a certain conduct, for example, the rule that States have the right to vest universal jurisdiction in their courts over war crimes (see Rule 157), can be found in acts that recognise the right to behave in such a way without actually requiring such behaviour. This will typically take the form of States undertaking such action, together with the absence of protests by other States. During work on the study it proved very difficult and largely theoretical to strictly separate elements of practice and legal conviction. More often than not, one and the same act reflects practice and legal conviction. As the International Law Association has pointed out, the International Court of Justice “has not in fact said in so many words that just because there are (allegedly) distinct elements in customary law the same conduct cannot manifest both. It is in 42 fact often difficult or even impossible to disentangle the two elements.” This is particularly so because verbal acts count as State practice and often reflect the legal conviction of the State involved at the same time. When there is sufficiently dense practice, an opinio juris is generally con- tained within that practice and, as a result, it is not usually necessary to demon- strate separately the existence of an opinio juris. Opinio juris plays an impor- tant role, however, in certain situations where the practice is ambiguous, in order to decide whether or not that practice counts towards the formation of custom. This is often the case with omissions, when States omit to act or react but it is not clear why. An example of such a situation was analysed by the Lotus case in which France Permanent Court of International Justice in the disputed Turkey’s right to prosecute for a collision on the high seas. France argued that the absence of such prosecutions proved a prohibition under cus- tomary international law to prosecute, except by the flag State of the ship on board which the wrongful act took place. The Court, however, disagreed because it was not clear whether other States had abstained from prosecuting because they thought they had no right to do so or because of some other rea- son, for example, lack of interest or belief that a court of the flag State is a more 42 supra note 18, § 10(c), p. 718. For an in-depth analysis, see Peter Haggenmacher, ILA Report, “La doctrine des deux el ements du droit coutumier dans la pratique de la Cour internationale”, ́ ́ ́ ́ Revue g en erale de droit international public , Vol. 90, 1986, p. 5.

48 Introduction xlvii convenient forum. The Court stated there was no evidence of any “consci- 43 ous[ness] of having a duty to abstain”. Another situation of ambiguity was analysed by the International Court of North Sea Continental Shelf cases in which Denmark and the Justice in the Netherlands argued that a customary rule existed requiring a continental shelf , because a to be delimited on the basis of the equidistance principle, inter alia number of States had done so. The Court considered that the basis of the action of those States remained speculative and that no inference could be drawn that 44 they believed themselves to be applying a rule of customary international law. In other words, the States that had delimited their continental shelf on the basis of the equidistance principle had behaved in accordance with that principle but nothing showed that they considered themselves bound by it. It is basically in such cases, where practice is ambiguous, that both the International Court of Justice and its predecessor, the Permanent Court of International Justice, have looked in particular at whether they could separately establish the existence of an opinio juris that would indicate that the ambiguous practice in fact counted 45 towards the establishment of customary international law. In the area of international humanitarian law, where many rules require abstention from certain conduct, omissions pose a particular problem in the assessment of opinio juris because it has to be proved that the abstention is not a coincidence but based on a legitimate expectation. When such a requirement of abstention is indicated in statements and documents, the existence of a legal requirement to abstain from the conduct in question can usually be proved. In addition, such abstentions may also occur after the behaviour in question cre- ated a certain controversy, which also helps to prove that the abstention was not coincidental, although it is not always easy to conclude that the absten- tion occurred because of a sense of legal obligation. A particular example of this problem is abstention from certain conduct in non-international armed conflicts when a clear rule to abstain from such conduct can only be found in treaty law applicable to international armed conflicts. This is, for example, the case for abstention from the use of certain weapons in non-international armed conflicts, when the prohibition of the use of these weapons was agreed to by treaty a long time ago when rules in relation to non-international armed conflicts were not as readily thought about or accepted as they are now. Absten- tion from such use or of prohibited behaviour is not likely to lead other States to comment, and this is particularly the case in relation to non-international armed conflicts in which other States are not directly affected. The process of claim and counterclaim does not produce as much clarity with respect to non- international armed conflicts as it does with respect to international armed conflicts because in the latter case, two or more States are directly affected 43 PCIJ, Lotus case, supra note 19, p. 28. 44 ICJ, North Sea Continental Shelf cases, supra note 12, pp. 43–44, §§ 76–77. 45 ILA Report, supra note 18, Principle 17(iv) and commentary.

49 xlviii Introduction by each other’s behaviour, while in the former case, usually only one State is directly affected. It appears that international courts and tribunals on occasion conclude that a rule of customary international law exists when that rule is a desirable one for international peace and security or for the protection of the human person, 46 provided that there is no important contrary . opinio juris Examples of such conclusions are the finding by the International Military Tribunal at Nurem- 47 berg that the Hague Conventions of 1907 had hardened into customary law, Nicaragua case and the finding by the International Court of Justice in the that the rule of non-intervention in the internal and external affairs of other 48 States was part of customary international law. However, when there was opinio juris clear evidence of contrary by a number of States, including spe- cially affected ones, international case-law has held that the existence of a rule of customary international was not proven, for example, the advisory opinion of the International Court of Justice in the on the issue Nuclear Weapons case 49 of whether the use of nuclear weapons was illegal, and the ruling of the sole Texaco v. Libya case on the issue of a possible change in the arbitrator in the 50 law relating to compensation for expropriation. This aspect of the assessment of customary law is particularly relevant for international humanitarian law, given that most of this law seeks to regulate behaviour for humanitarian reasons. In some instances, it is not yet possible to find a rule of customary international law even though there is a clear majority practice in favour of the rule and such a rule is very desirable. Impact of treaty law Treaties are also relevant in determining the existence of customary interna- tional law because they help assess how States view certain rules of inter- national law. Hence, the ratification, interpretation and implementation of a 46 For an analysis of this phenomenon in the behaviour of international courts, see Frederic L. American Journal of International Law , Vol. 81, 1987, Kirgis, “Custom on a Sliding Scale”, p. 146. 47 Case of the Major War Criminals , Judgement, International Military Tribunal at Nuremberg, Official Documents , Vol. I, pp. 253–254. 1 October 1946, 48 ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua, supra note 14, pp. 106–110, §§ 202–209. 49 ICJ, Nuclear Weapons case, supra note 28, p. 255, § 73. This finding of the ICJ was in relation to an analysis of whether there was sufficiently consistent . In this context, the Court opinio juris found, with respect to UN General Assembly resolutions which stated that the use of nuclear weapons was illegal and which were adopted by a large majority of States, that they did not create sufficient opinio juris to establish a rule of customary law because of the large number of negative votes and abstentions. 50 Texaco Overseas Petroleum Company and California Asiatic Oil Company v. Libyan Arab Republic , Arbitral Award, 19 January 1977, §§ 80–91, reprinted in International Legal Materials , Vol. 17, 1978, pp. 27–31. The sole arbitrator found that there was insufficient support by one group of specially affected States for the Charter of Economic Rights and Duties of States and for the Declaration on the Establishment of a New International Economic Order.

50 Introduction xlix treaty, including reservations and statements of interpretation made upon rat- ification, are included in the study. In the North Sea Continental Shelf cases , the International Court of Justice clearly considered the degree of ratification of a treaty to be relevant to the assessment of customary law. In that case, the Court stated that “the number of ratifications and accessions so far secured [39] is, though respectable, hardly sufficient”, especially in a context where practice 51 outside the treaty was contradictory. Conversely, in the Nicaragua case , the Court placed a great deal of weight, when assessing the customary status of the non-intervention rule, on the fact that the UN Charter was almost universally ratified and that relevant UN General Assembly resolutions had been widely approved, in particular Resolution 2625 (XXV) on friendly relations between 52 States, which was adopted without a vote. It can even be the case that a treaty provision reflects customary law, even though the treaty is not yet in force, provided that there is sufficiently similar practice, including by specially affected States, so that there remains little likelihood of significant opposition 53 to the rule in question. In practice, the drafting of treaty norms helps to focus world legal opinion and has an undeniable influence on the subsequent behaviour and legal conviction of States. This reality was recognised by the International Court of Justice in Continental Shelf case : the It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defin- 54 ing rules deriving from custom, or indeed in developing them. The Court thus recognised that treaties may codify pre-existing customary international law but may also lay the foundation for the development of new customs based on the norms contained in those treaties. The Court has even gone so far as to state that “it might be that . . . a very widespread and rep- resentative participation in [a] convention might suffice of itself, provided it 55 included that of States whose interests were specially affected”. The International Law Association has summarised this case-law, stating that a (multilateral) treaty may thus interact in four different ways with custom: it can provide evidence of existing custom; it can provide the inspiration or model for the adoption of new custom through State practice; it can assist in the so-called “crystallisation” of emerging custom; and it can even give rise to new custom of “its own impact” if the rule concerned is of a fundamentally 51 ICJ, North Sea Continental Shelf cases, supra note 12, p. 42, § 73. 52 Case concerning Military and Paramilitary Activities in and against Nicaragua, supra note ICJ, 14, pp. 99–100, § 188. 53 ICJ, Continental Shelf case, supra note 11, p. 33, § 34. The number of claims to an exclusive economic zone had risen to 56, which included several specially affected States. 54 ICJ, Continental Shelf case, supra note 11, pp. 29–30, § 27. 55 ICJ, North Sea Continental Shelf cases, supra note 12, p. 42, § 73.

51 l Introduction norm-creating character and is widely adopted by States with a view to creating a new general legal obligation. There can be no presumption that any of these interactions has taken place and in each case it is a matter of examining the 56 evidence. This study takes the cautious approach that widespread ratification is only an indication and has to be assessed in relation to other elements of practice, in particular the practice of States not party to the treaty in question. Consistent practice of States not party has been considered as important positive evidence. Contrary practice of States not party, however, has been considered as impor- a-vis States tant negative evidence. The practice of States party to a treaty vis- ` not party is also particularly relevant. This study has not, however, limited itself to the practice of States not party to the relevant treaties of international humanitarian law. To limit the study to a consideration of the practice of only the 30-odd States that have not ratified the Additional Protocols, for example, would not comply with the requirement that customary international law be based on widespread and representative practice. Therefore, the assessment of the existence of customary law takes into account the fact that, at the time of writing, Additional Protocol I has been ratified by 162 States and Additional Protocol II by 157 States. Similarly, the assessment of customary law also takes into account the fact that the Geneva Conventions have been ratified by 192 States and this is not repeated in the commentaries. Lastly, the most important judicial decisions on the customary nature of humanitarian law provisions are not repeated in the commentaries which cite the rules held to be customary. This applies in particular to the finding by the International Military Tribunal at Nuremberg that the 1907 Hague Reg- ulations “undoubtedly represented an advance over existing international law at the time of their adoption . . . but by 1939 these rules laid down in the Con- vention were recognized by all civilized nations, and were regarded as being 57 declaratory of the laws and customs of war”. It also applies to the Nicaragua , in which the International Court of Justice held that common Article 3 of case the Geneva Conventions reflected “elementary considerations of humanity” 58 constituting a “minimum yardstick” applicable to all armed conflicts. It fur- Nuclear ther applies to the finding of the International Court of Justice in the that the great majority of the provisions of the 1949 Geneva Weapons case 59 Conventions represent customary international law. In the same vein, it is important to stress, though it is not repeated in the commentaries, that with regard to the Statute of the International Criminal Court, there was a “general 56 ILA Report, note 18, Principles 20–21, 24, 26 and 27, pp. 754–765. supra 57 International Military Tribunal at Nuremberg, Case of the Major War Criminals, supra note 47. 58 ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua, supra note 14, p. 114, § 218. 59 ICJ, Nuclear Weapons case, supra note 28, pp. 257–258, §§ 79 and 82.

52 Introduction li agreement that the definitions of crimes in the ICC Statute were to reflect 60 existing customary international law, and not to create new law”. Organisation of the study To determine the best way of fulfilling the mandate entrusted to it, the ICRC consulted a group of academic experts in international humanitarian law who formed the Steering Committee of the study. The Steering Committee con- sisted of Professors Georges Abi-Saab, Salah El-Din Amer, Ove Bring, Eric David, John Dugard, Florentino Feliciano, Horst Fischer, Franc ̧ oise Hampson, c and Ra Theodor Meron, Djamchid Momtaz, Milan ahovi ul Emilio Vinuesa. ́ ́ The Steering Committee adopted a Plan of Action in June 1996 and research started in October 1996. Pursuant to the Plan of Action, research was con- ducted using both national and international sources reflecting State practice. Research into these sources focused on the six parts of the study as identified in the Plan of Action:  Principle of distinction  Specifically protected persons and objects  Specific methods of warfare  Weapons  Treatment of civilians and persons hors de combat  Implementation The measure of access to national and international sources largely explains the research method adopted. Research in national sources of practice Since national sources are more easily accessible from within a country, it was decided to seek the cooperation of national researchers. To this end, nearly 50 countries were selected (9 in Africa, 15 in Asia, 11 in Europe, 11 in the Americas and 1 in Australasia) and in each a researcher or group of researchers was identified to report on State practice (see Annex I). The Steering Committee selected the countries on the basis of geographic representation, as well as recent experience of different kinds of armed conflicts in which a variety of methods of warfare had been used. The result was a series of reports on State practice. Significant practice of other countries was identified through research into international sources and ICRC archives (see infra ). The sources of State practice collected by the national researchers include military manuals, national legislation, national case-law, instructions to armed 60 Philippe Kirsch, “Foreword”, in Knut D Elements of War Crimes under the Rome ormann, ̈ Statute of the International Criminal Court: Sources and Commentary, supra note 1, p. xiii; see also Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I, Proceedings of the Preparatory Committee during March–April and August 1996, UN General Assembly Official Records , UN Doc. A/51/22, 13 September 1996, § 54.

53 lii Introduction es during war, diplomatic protests, and security forces, military communiqu ́ opinions of official legal advisers, comments by governments on draft treaties, executive decisions and regulations, pleadings before international tribunals, statements in international organisations and at international conferences and government positions taken with respect to resolutions of international organ- isations. The military manuals and national legislation of countries not covered by the reports on State practice were also researched and collected. This work was facilitated by the network of ICRC delegations around the world and the exten- sive collection of national legislation gathered by the ICRC Advisory Service on International Humanitarian Law. The purpose of the additional research was also to make sure that the study would be as up-to-date as possible and would, to the extent possible, take into account developments up to 31 Decem- ber 2002. In some cases, it has been possible to include more recent practice. Research in international sources of practice State practice gleaned from international sources was collected by six teams, each of which concentrated on one part of the study. These teams consisted of the following persons: Part I. Principle of distinction Rapporteur: Georges Abi-Saab ́ Researcher: Jean-Franc ̧ ois Qu eguiner Part II. Specifically protected persons and objects Rapporteur: Horst Fischer Researchers: Gregor Schotten and Heike Spieker Part III. Specific methods of warfare Rapporteur: Theodor Meron ́ e Researcher: Richard Desgagn Part IV. Weapons Rapporteur: Ove Bring Researcher: Gustaf Lind Part V. Treatment of civilians and persons hors de combat Rapporteur: Franc ̧ oise Hampson Researcher: Camille Giffard Part VI. Implementation Rapporteur: Eric David ́ Researcher: Richard Desgagn e These teams researched practice in the framework of the United Nations and of other international organisations, in particular the African Union (for- merly the Organization of African Unity), Council of Europe, Gulf Cooperation Council, European Union, League of Arab States, Organization of American

54 Introduction liii States, Organization of the Islamic Conference and Organization for Security and Cooperation in Europe. The practice of the Commonwealth of Indepen- dent States, Inter-Parliamentary Union and Non-Aligned Movement was also researched. Access to the practice of these organisations was facilitated by the ICRC delegations which maintain contacts with them. State practice at the international level is reflected in a variety of sources, including in resolutions adopted in the framework of the United Nations, in par- ticular by the Security Council, General Assembly and Commission on Human Rights, ad hoc investigations conducted by the United Nations, the work of the International Law Commission and comments it elicited from govern- ments, the work of the committees of the UN General Assembly, reports of the UN Secretary-General, thematic and country-specific procedures of the UN Commission on Human Rights, reporting procedures before the Human Rights Committee, the Committee against Torture, the Committee on the Elimina- tion of Discrimination Against Women and the Committee on the Rights of the ́ travaux pr of treaties, and State submissions to international eparatoires Child, and regional courts. International case-law was also collected to the extent that it provides evi- dence of the existence of rules of customary international law. Research in ICRC archives To complement the research into national and international sources, the ICRC looked into its own archives relating to nearly 40 recent armed conflicts, some 20 of which occurred in Africa, 8 in Asia, 8 in Europe and 2 in the Americas (see Annex II). In general, these conflicts were selected so that countries and conflicts not yet dealt with by a report on State practice would also be covered. The result of this three-pronged approach – that is, research into national, inter- national and ICRC sources – is that practice from all parts of the world is cited. In the nature of things, however, this research cannot purport to be complete. Research for the study focused in particular on practice from the last 30 years to ensure that the result would be a restatement of contemporary custom- ary international law, but, where still relevant, older practice has also been cited. Consolidation of research results Upon completion of the research, all practice gathered was summarised and consolidated into separate parts covering the different areas of the study. This work was carried out by the six international research teams for the part which concerned them. The chapters containing this consolidated practice were

55 liv Introduction subsequently edited, supplemented and updated by a group of ICRC researchers, and are published in Volume II, “Practice”. The reason for publishing such volu- minous chapters is twofold. First, those consulting the study should be able to verify the basis in State practice for each rule of customary international law. Each rule in Volume I refers to the chapter and section in Volume II where the practice on which that rule is based can be found. Secondly, it was considered useful to publish the wealth of information that has been compiled. Many prac- titioners and scholars will thus be able to use the practice gathered for their own professional purposes. Expert consultations In a first round of consultations, the ICRC invited the international research teams to produce an “executive summary” containing a preliminary assess- ment of customary international humanitarian law on the basis of the practice collected. These executive summaries were discussed within the Steering Com- mittee at three meetings in Geneva (see Annex III). On the basis of this first round of consultations, the “executive summaries” were updated, and during a second round of consultations, they were submitted to a group of academic and governmental experts from all the regions of the world invited in their personal capacity by the ICRC to attend two meetings with the Steering Committee (see Annex III). During these two meetings in Geneva, the experts helped to evaluate the practice collected and indicated particular practice that had been missed. Writing of the report The assessment by the Steering Committee, as reviewed by the group of aca- demic and governmental experts, served as a basis for the writing of the final report. The authors of the study re-examined the practice, reassessed the exis- tence of custom, reviewed the formulation and the order of the rules, and drafted the commentaries. The draft texts were submitted to the ICRC Legal Division, whose members provided extremely helpful comments and insights. More- over, each Part was reviewed by an additional reader: Maurice Mendelson for the introductory part on the assessment of customary international law, Knut D ormann for Part I, Theodor Meron for Part II, Horst Fischer for Part III, the ̈ Mines and Arms Unit of the ICRC led by Peter Herby for Part IV, William Fenrick for Part V and Antonio Cassese for Part VI. On the basis of their com- ments and those of the ICRC Legal Division, a second draft was prepared, which was submitted for written consultation to the Steering Committee, the group of academic and governmental experts and the ICRC Legal Division. The text was further updated and finalised taking into account the comments received.

56 Introduction lv This study was initiated under the supervision of Louise Doswald-Beck, then Deputy Head and later Head of the ICRC Legal Division. Jean-Marie Henckaerts has been responsible for the overall management of the study and drafted Parts I, II, III and V of Volume I. Louise Doswald-Beck drafted Parts IV and VI, as well as Chapters 14 and 32, of Volume I. The introductory parts were drafted by both of them. In drafting the text they received important contributions from ormann and Baptiste Rolle. The authors, jointly, Carolin Alvermann, Knut D ̈ bear the sole responsibility for the content of the study. Annex I. National research On the basis of geographical representation and experience of armed conflict, the following States were selected for an in-depth study of national practice on international humanitarian law by a local expert. Significant practice of other States was found in international sources and the ICRC’s archives. Africa Algeria, Angola, Botswana, Egypt, Ethiopia, Nigeria, Rwanda, South Africa, Zimbabwe. Asia China, India, Indonesia, Iran, Iraq, Israel, Japan, Jordan, Republic of Korea, Kuwait, Lebanon, Malaysia, Pakistan, Philippines, Syria. Australasia Australia. Europe Belgium, Bosnia and Herzegovina, Croatia, France, Germany, Italy, Nether- lands, Russian Federation, Spain, United Kingdom, Yugoslavia. Americas Argentina, Brazil, Canada, Chile, Colombia, Cuba, El Salvador, Nicaragua, Peru, United States of America, Uruguay. Annex II. Research in the ICRC archives The conflicts for which research was carried out in the ICRC archives were chosen in order to include States and territories not covered by a report on State practice. Africa Angola, Burundi, Chad, Chad–Libya, Democratic Republic of the Congo, Dji- bouti, Eritrea–Yemen, Ethiopia (1973–1994), Liberia, Mozambique, Namibia,

57 lvi Introduction Nigeria–Cameroon, Rwanda, Senegal, Senegal–Mauritania, Sierra Leone, Somalia, Somalia–Ethiopia, Sudan, Uganda, Western Sahara. Asia Afghanistan, Cambodia, India (Jammu and Kashmir), Papua New Guinea, Sri Lanka, Tajikistan, Yemen, Yemen–Eritrea (also under Africa). Europe Armenia–Azerbaijan (Nagorno-Karabakh), Cyprus, Former Yugoslavia (conflict in Yugoslavia (1991–1992), conflict in Bosnia and Herzegovina (1992–1996), conflict in Croatia (Krajinas) (1992–1995)), Georgia (Abkhazia), Russian Feder- ation (Chechnya), Turkey. Americas Guatemala, Mexico. Annex III. Expert consultations 1. Consultation with the Steering Committee (1998) First meeting, 28 April–1 May 1998 : Specific methods of warfare; Weapons. Second meeting, 16–18 August 1998 : Principle of distinction; Specifically protected persons and objects. Third meeting, 14–17 October 1998 hors : Treatment of civilians and persons ; Implementation. de combat The Steering Committee consisted of Professors Georges Abi-Saab, Salah El-Din Amer, Ove Bring, Eric David, John Dugard, Florentino Feliciano, Horst Fischer, Franc ̧ oise Hampson, Theodor Meron, Djamchid Momtaz, Milan ahovi c ́ and Ra ul Emilio Vinuesa. ́ 2. Consultation with academic and governmental experts (1999) : Specific methods of warfare; Weapons; First meeting, 4–8 January 1999 Specifically protected persons and objects. Second meeting, 1–5 May 1999 : Principle of distinction; Treatment of civil- hors de combat ians and persons ; Implementation. The following academic and governmental experts were invited by the ICRC, in their personal capacity, to participate in this consultation: Abdallah Ad-Douri (Iraq), Paul Berman (United Kingdom), Sadi C ̧ ayc y ́ (Turkey), Michael Cowling (South Africa), Edward Cummings (United States of America), Antonio de Icaza (Mexico), Yoram Dinstein (Israel), Jean-Michel Favre omez (France), William Fenrick (Canada), Dieter Fleck (Germany), Juan Carlos G ́ Ram ırez (Colombia), Jamshed A. Hamid (Pakistan), Arturo Hern andez-Basave ́ ́ (Mexico), Ibrahim Idriss (Ethiopia), Hassan Kassem Jouni (Lebanon), Kenneth Keith (New Zealand), Githu Muigai (Kenya), Rein M ullerson (Estonia), Bara ̈ Niang (Senegal), Mohamed Olwan (Jordan), Raul C. Pangalangan (Philippines),

58 Introduction lvii Stelios Perrakis (Greece), Paulo Sergio Pinheiro (Brazil), Arp ad Prandler (Hun- ́ gary), Pemmaraju Sreenivasa Rao (India), Camilo Reyes Rodr ıguez (Colombia), ́ Itse E. Sagay (Nigeria), Harold Sandoval (Colombia), Somboon Sangianbut (Thai- land), Marat A. Sarsembayev (Kazakhstan), Muhammad Aziz Shukri (Syria), Parlaungan Sihombing (Indonesia), Geoffrey James Skillen (Australia), Guoshun Sun (China), Bakhtyar Tuzmukhamedov (Russia) and Karol Wolfke (Poland). 3. Written consultation with the academic and governmental experts (2002–2004) The experts listed above were invited to comment on two drafts, and a num- ber of them provided written comments which were taken into account. Authors’ Note This volume catalogues rules of customary international humanitarian law. As such, only the black letter rules are identified as part of customary international law, and not the commentaries to the rules. The commentaries may, however, contain useful clarifications with respect to the application of the black letter rules. The practice on which these rules are based can be found in Volume II of this study. Each chapter in Volume I corresponds to a chapter in Volume II, and each rule in Volume I corresponds to a section within a chapter in Volume II. The present study examines first and foremost the rules of customary inter- national law that have been formed by State practice. References are there- fore for the most part to State practice, and not to academic writings. Most of these references are cited in Volume II and the footnotes therefore refer to Volume II. The qualification of conflicts in this study is based on the practice from which it is taken and does not necessarily reflect the opinion of the authors or that of the International Committee of the Red Cross.

59 ABBREVIATIONS CCW Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (1980) CDDH Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 1974–1977) CIS Commonwealth of Independent States CSCE Conference on Security and Cooperation in Europe ECOSOC United Nations Economic and Social Council ENMOD Convention Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (1976) EC European Community EU European Union FMLN on Nacional ı para la Liberaci Farabundo Mart ́ ́ (Farabundo Mart ı National Liberation Front, El ́ Salvador) Federal Republic of Yugoslavia FRY International Criminal Court ICC ICJ International Court of Justice ICJ Reports International Court of Justice, Reports of Judgments, Advisory Opinions and Orders ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia International humanitarian law IHL ILA International Law Association ILC International Law Commission IMT International Military Tribunal LTTE Liberation Tigers of Tamil Eelam (Sri Lanka) NATO North Atlantic Treaty Organisation OAS Organization of American States lviii

60 List of abbreviations lix Organization of African Unity (now African Union) OAU Organization of the Islamic Conference OIC OSCE Organization for Security and Cooperation in Europe Permanent Court of International Justice PCIJ Prisoner of war POW SFRY Socialist Federal Republic of Yugoslavia SPLM/A Sudan People’s Liberation Movement/Army UN United Nations UNESCO United Nations Education, Scientific and Cultural Organization United Nations High Commissioner for Refugees UNHCR UN Sub-Commission United Nations Sub-Commission on the Promotion on Human Rights and Protection of Human Rights (formerly the Sub-Commission on Prevention of Discrimination and Protection of Minorities) USSR Union of Soviet Socialist Republics UK United Kingdom of Great Britain and Northern Ireland US United States of America YPA Yugoslav People’s Army

61

62 part i THE PRINCIPLE OF DISTINCTION

63

64 chapter 1 DISTINCTION BETWEEN CIVILIANS AND COMBATANTS Rule 1. The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians. Practice Volume II, Chapter 1, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The three components of this rule are interrelated and the practice pertaining to each of them reinforces the validity of the others. The term “combatant” in this rule is used in its generic meaning, indicating persons who do not enjoy the protection against attack accorded to civilians, but does not imply a right to combatant status or prisoner-of-war status (see Chapter 33). This rule has to be read in conjunction with the prohibition to attack persons recognised to be hors de combat (see Rule 47) and with the rule that civilians are protected against attack unless and for such time as they take a direct part in hostilities (see Rule 6). Belligerent reprisals against civilians are discussed in Chapter 41. International armed conflicts The principle of distinction between civilians and combatants was first set forth in the St. Petersburg Declaration, which states that “the only legitimate object which States should endeavour to accomplish during war is to weaken 1 The Hague Regulations do not as such the military forces of the enemy”. specify that a distinction must be made between civilians and combatants, but Article 25, which prohibits “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended”, is based on 2 this principle. The principle of distinction is now codified in Articles 48, 51(2) 1 St. Petersburg Declaration, preamble (cited in Vol. II, Ch. 1, § 83). 2 Hague Regulations, Article 25. 3

65 4 distinction between civilians and combatants 3 and 52(2) of Additional Protocol I, to which no reservations have been made. According to Additional Protocol I, “attacks” means “acts of violence against 4 the adversary, whether in offence or in defence”. At the Diplomatic Conference leading to the adoption of the Additional Pro- tocols, Mexico stated that Articles 51 and 52 of Additional Protocol I were so essential that they “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and 5 undermine its basis”. Also at the Diplomatic Conference, the United Kingdom stated that Article 51(2) was a “valuable reaffirmation” of an existing rule of 6 customary international law. The prohibition on directing attacks against civilians is also laid down in Protocol II, Amended Protocol II and Protocol III to the Convention on Certain Conventional Weapons and in the Ottawa Convention banning anti-personnel 7 landmines. In addition, under the Statute of the International Criminal Court, “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” constitutes 8 a war crime in international armed conflicts. Numerous military manuals, including those of States not, or not at the time, party to Additional Protocol I, stipulate that a distinction must be made between civilians and combatants and that it is prohibited to direct attacks 9 against civilians. Sweden’s IHL Manual identifies the principle of distinction as laid down in Article 48 of Additional Protocol I as a rule of customary inter- 10 national law. In addition, there are numerous examples of national legislation which make it a criminal offence to direct attacks against civilians, including 11 the legislation of States not, or not at the time, party to Additional Protocol I. in 1969, Israel’s Military Court at Ramallah recognised In the Kassem case the immunity of civilians from direct attack as one of the basic rules of inter- 12 national humanitarian law. There are, moreover, many official statements which invoke the rule, including by States not, or not at the time, party to 3 Additional Protocol I, Article 48 (adopted by consensus) (cited in Vol. II, Ch. 1, § 1), Article 51(2) ibid. (adopted by 77 votes in favour, one against and 16 abstentions) ( , § 154) and Article 52(2) ibid. , § 85). (adopted by 79 votes in favour, none against and 7 abstentions) ( 4 Additional Protocol I, Article 49. 5 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (cited in Vol. II, Ch. 1, §§ 146, 307, 536 and 800). 6 United Kingdom, Statement at the Diplomatic Conference leading to the adoption of the Addi- tional Protocols ( , §§ 319, 537 and 803). ibid. 7 Protocol II to the CCW, Article 3(2) ( , § 157); Amended Protocol II to the CCW, Article 3(7) ibid. ( ibid. , § 157); Protocol III to the CCW, Article 2(1) ( ibid. , § 158); Ottawa Convention, preamble ibid. , § 3). ( 8 ICC Statute, Article 8(2)(b)(i) ( ibid. , § 160). 9 See military manuals ( ibid. , §§ 10–34 and 173–216), in particular the manuals of France ( ibid. , §§ 21 and 188), Indonesia ( ibid. , § 192), Israel ( ibid. , §§ 25 and 193–194), Kenya ( ibid. , § 197), United Kingdom ( ibid. ibid. , §§ 33–34 and 214–215). , §§ 212–213) and United States ( 10 Sweden, ( ibid. , § 29). IHL Manual 11 See legislation ( ibid. , §§ 217–269), in particular the legislation of Azerbaijan ( ibid. , §§ 221–222), Indonesia ( , § 243) and Italy ( ibid. , § 245). ibid. 12 Israel, Military Court at Ramallah, Kassem case ( ibid. , § 271).

66 Rule 1 5 13 The rule has also been invoked by parties to Additional Additional Protocol I. 14 Protocol I against non-parties. Nuclear In their pleadings before the International Court of Justice in the 15 Weapons case , many States invoked the principle of distinction. In its advi- Nuclear Weapons case , the Court stated that the principle sory opinion in the of distinction was one of the “cardinal principles” of international humanitar- ian law and one of the “intransgressible principles of international customary 16 law”. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the distinction between combatants and civilians, the States concerned (Egypt, 17 Iraq, Israel and Syria) replied favourably. Non-international armed conflicts Article 13(2) of Additional Protocol II prohibits making the civilian population 18 as such, as well as individual civilians, the object of attack. The prohibition on directing attacks against civilians is also contained in Amended Protocol 19 II to the Convention on Certain Conventional Weapons. It is also set forth in Protocol III to the Convention on Certain Conventional Weapons, which has been made applicable in non-international armed conflicts pursuant to an 20 amendment of Article 1 of the Convention adopted by consensus in 2001. The Ottawa Convention banning anti-personnel landmines states that the Conven- tion is based, , on “the principle that a distinction must be made inter alia 21 between civilians and combatants”. Under the Statute of the International Criminal Court, “intentionally direct- ing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” constitutes a war crime in non- 22 international armed conflicts. In addition, this rule is included in other instru- 23 ments pertaining also to non-international armed conflicts. 13 See, e.g., the statements of Azerbaijan ( ibid. , § 279), France ( ibid. ,§§41and ibid. , § 273), China ( 285), Germany ( , §§ 290–291 and 293), Iran ( ibid. , §§ 296–297), Iraq ( ibid. , § 298), Pakistan ibid. ( , §§ 311–312), South Africa ( ibid. , § 49), United Kingdom ( ibid. , § 321) and United States ibid. ( ibid. , §§ 51–53 and 322–329). 14 See, e.g., the statements of Germany vis- ibid. , § 292) and Iraq ( ibid. , § 293), of a-vis Turkey ( ` a-vis Iran and ibid. , § 312) vis- Lebanon ( a-vis Israel, and of Spain vis- ibid. , § 304) and Pakistan ( ` ` Iraq ( ibid. , § 315). 15 ibid. , § 39), Egypt ( ibid. , §§ 40 and 283), India ( ibid. , § 42), Japan See the statements of Ecuador ( ibid. ( ibid. , § 309), New Zealand ( ibid. , § 45), Solomon Islands ( ibid. , § 48), , § 43), Netherlands ( Sweden ( ibid. , § 316), United Kingdom ( ibid. , §§ 50 and 321) and United States ( ibid. , § 329). 16 ICJ, ( ibid. , § 434). Nuclear Weapons case 17 See ICRC, The International Committee’s Action in the Middle East ( , § 445). ibid. 18 Additional Protocol II, Article 13(2) (adopted by consensus) ( ibid. , § 156). 19 Amended Protocol II to the CCW, Article 3(7) ( ibid. , § 157). 20 ibid. , § 158). Protocol III to the CCW, Article 2(1) ( 21 Ottawa Convention, preamble ( ibid. , § 3). 22 ICC Statute, Article 8(2)(e)(i) ( ibid. , § 160). 23 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , §§ 6, 97 and 167); Agreement on the Application of IHL between the Parties

67 6 distinction between civilians and combatants Military manuals which are applicable in or have been applied in non- international armed conflicts specify that a distinction must be made between 24 combatants and civilians to the effect that only the former may be targeted. To direct attacks against civilians in any armed conflict is an offence under the 25 legislation of numerous States. There are also a number of official statements pertaining to non-international armed conflicts invoking the principle of dis- 26 tinction and condemning attacks directed against civilians. States’ submis- Nuclear Weapons case referred sions to the International Court of Justice in the to above were couched in general terms applicable in all armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. This rule is sometimes expressed in other terms, in particular as the principle of distinction between combatants and non-combatants, whereby civilians who do not take a direct part in hostilities 27 are included in the category of non-combatants. to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 7, 98 and 168); San Remo Manual, , §§ 8 and 99); UN Secretary-General’s Bulletin, Section 5.1 ( ibid. ,§§9, paras. 39 and 41 ( ibid. , § 165); Hague ibid. 100 and 171); Cairo Declaration on Human Rights in Islam, Article 3(a) ( , § 166); UNTAET Regulation 2000/15, Statement on Respect for Humanitarian Principles ( ibid. ibid. , 172). Section 6(1)(e)(i) ( 24 , § 173), Benin ( ibid. , § 177), Cameroon ( See, e.g., the military manuals of Argentina ( , ibid. ibid. ibid. , § 179), Colombia ( ibid. , §§ 181–182), Germany ( ibid. , § 189), Netherlands § 178), Canada ( ibid. , § 201), New Zealand ( ibid. ( ibid. , § 205), Togo ( ibid. , § 211) and , § 203), Philippines ( Yugoslavia ( , 216). ibid. 25 See, e.g., the legislation of Armenia ( ibid. , § 220), Azerbaijan ( ibid. , ibid. , § 218), Australia ( , § 223), Belgium ( ibid. , § 224), Bosnia and Herzegovina ( ibid. , § 225), §§ 221–222), Belarus ( ibid. ibid. ibid. , § 230), Democratic Republic of the Congo ( ibid. , § 231), Canada ( , § 228), Colombia ( ibid. , § 232), Croatia ( Congo ( , § 234), Estonia ( ibid. , § 239), Georgia ( ibid. , § 240), Germany ibid. ( , § 241), Ireland ( ibid. , § 244), Lithuania ( ibid. , § 248), Netherlands ( ibid. , § 250), New ibid. ibid. , § 252), Niger ( ibid. , § 254), Norway ( ibid. , § 255), Slovenia ( ibid. , § 257), Spain Zealand ( ( ibid. , § 259), Sweden ( ibid. , § 260), Tajikistan ( ibid. , § 261), United Kingdom ( ibid. , § 265), Vietnam ( ibid. ibid. , § 267) and Yugoslavia ( ibid. , § 268); see also the legislation , § 266), Yemen ( ibid. , § 237), Hungary ( , § 242), Italy ( ibid. , § 245) and Slovakia ( ibid. , of the Czech Republic ( ibid. § 256), the application of which is not excluded in time of non-international armed conflict, and ibid. , § 217), Burundi ( ibid. , § 226), El Salvador ( ibid. , § 238), the draft legislation of Argentina ( ibid. , § 246), Nicaragua ( ibid. , § 253) and Trinidad and Tobago ( ibid. , § 262). Jordan ( 26 See, e.g., the statements of Belgium ( , § 274), France ( ibid. , §§ 286 and 288–289), Germany ibid. ibid. , § 47), ibid. , § 306), Netherlands ( ibid. , § 308), Philippines ( ibid. ( , §§ 294–295), Malaysia ( ibid. , § 314) and Uganda ( ibid. , § 317). Slovenia ( 27 ibid ., § 718), Dominican Republic ( ibid. , §§ 185, 583 See, e.g., the military manuals of Croatia ( and 720), Ecuador ( ibid. , §§ 20 and 721), Hungary ( ibid. , § 724), Sweden ( ibid. , § 733) and United States ( ibid. Kassem case ( ibid. , § 271); , §§ 34 and 737); Israel, Military Court at Ramallah, ibid. ibid. ibid. , § 840), Egypt ( the statements of Belgium ( , § 40), India , § 274), Colombia ( ibid. ( ibid. , § 296), Japan ( ibid. , § 43), South Korea ( ibid. , § 302), Solomon Islands , § 42), Iran ( ( ibid. , § 48) and United States ( ibid. , §§ 53, 328); UN Security Council, Res. 771 ( ibid. , § 337) and Res. 794 ( , § 338); UN Commission on Human Rights, Res. 1992/S-1/1 ( ibid. , § 388); ibid. UN Secretary-General, Report on protection for humanitarian assistance to refugees and others in conflicts situations ( ibid. , § 57); Report pursuant to paragraph 5 of Security Council resolu- tion 837 (1993) on the investigation into the 5 June 1993 attack on United Nations forces in Somalia conducted on behalf of the UN Security Council ( ibid. , § 58); ICJ, Nuclear Weapons case , Advisory Opinion ( ibid. , § 61). For other formulations, see, e.g., the military manuals of Belgium ( ibid. , § 12) (distinction between “the civilian population and those participating in hos- tilities”) and Sweden ( ibid. , § 29) (distinction between “persons participating in hostilities and

68 Rule 1 7 Alleged violations of this rule have generally been condemned by States, 28 irrespective of whether the conflict was international or non-international. Similarly, the UN Security Council has condemned or called for an end to alleged attacks against civilians in the context of numerous conflicts, both international and non-international, including in Afghanistan, Angola, Azer- baijan, Burundi, Georgia, Lebanon, Liberia, Rwanda, Sierra Leone, Somalia, 29 Tajikistan, the former Yugoslavia and the territories occupied by Israel. As early as 1938, the Assembly of the League of Nations stated that “the 30 intentional bombing of civilian populations is illegal”. The 20th International Conference of the Red Cross in 1965 solemnly declared that governments and other authorities responsible for action in all armed conflicts should conform 31 to the prohibition on launching attacks against a civilian population. Sub- sequently, a UN General Assembly resolution on respect for human rights in armed conflicts, adopted in 1968, declared the principle of distinction to be 32 applicable in all armed conflicts. The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Cres- cent in 1999, requires that all parties to an armed conflict respect “the total ban on directing attacks against the civilian population as such or against civilians 33 not taking a direct part in hostilities”. In a resolution adopted in 2000 on protection of civilians in armed conflicts, the UN Security Council reaffirmed its strong condemnation of the deliberate targeting of civilians in all situations 34 of armed conflict. Nuclear The jurisprudence of the International Court of Justice in the Weapons case , of the International Criminal Tribunal for the Former who are thereby legitimate objectives, and members of the civilian population”); the statement ibid. , § 45) (distinction between “combatants and those who are not directly of New Zealand ( ibid. involved in armed conflict”); UN General Assembly, Res. 2444 (XXIII) ( , § 55) (distinction between “persons taking part in the hostilities and members of the civilian population”) and Res. 2675 (XXV) ( ibid. , § 56) (distinction between “persons actively taking part in the hostilities and civilian populations”). 28 See, e.g., the statements of Australia ( , § 272), Bosnia and Herzegovina ( ibid. , § 276), China ibid. ibid. , § 279), Croatia ( ibid. , § 281), France ( ibid. , §§ 284, 286 and 288–289), Germany ( ibid. ( , §§ 290 and 292–295), Iran ( , § 297), Kazakhstan ( ibid. , § 301), Lebanon ( ibid. , § 305), Nether- ibid. lands ( , § 308), Pakistan ( ibid. , §§ 311–312), Slovenia ( ibid. , § 314), Spain ( ibid. , § 315), ibid. Uganda ( ibid. , § 317) and Yugoslavia ( ibid. , § 331). 29 See, e.g., UN Security Council, Res. 564 ( , § 336), Res. 771 ( ibid. , § 337), Res. 794 ( ibid. , ibid. ibid. ibid. , § 340), Res. 904 ( ibid. , § 341), Res. 912 ( ibid. , § 338), Res. 819 ( , § 339), Res. 853 ( ibid. , § 343), Res. 918, 925, 929 and 935 ( ibid. § 342), Res. 913 ( ibid. , § 345), , § 344), Res. 950 ( Res. 978 ( ibid. , § 346), Res. 993 ( ibid. , § 347), Res. 998 ( ibid. , § 348), Res. 1001 ( ibid. , § 349), Res. 1019 ( ibid. , § 350), Res. 1041 ( ibid. , § 351), Res. 1049 and 1072 ( ibid. , § 352), Res. 1052 ( ibid. , § 353), Res. 1073 ( ibid. ibid. , § 355), Res. 1089 ( ibid. , § 356), Res. 1161 ( ibid. , , § 354), Res. 1076 ( § 357), Res. 1173 and 1180 ( , § 358) and Res. 1181 ( ibid. , § 359). ibid. 30 League of Nations, Assembly, Resolution adopted on 30 September 1938 ( ibid. , § 378). 31 20th International Conference of the Red Cross, Res. XXVIII ( , §§ 60 and 429). ibid. 32 UN General Assembly, Res. 2444 (XXIII) (adopted by unanimous vote of 111 in favour, none against and no abstentions) ( ibid. , §§ 55 and 379). 33 27th International Conference of the Red Cross and Red Crescent, Plan of Action for the years 2000–2003 (adopted by consensus) ( ibid. , § 433). 34 UN Security Council, Res. 1296 ( ibid. , § 361).

69 8 distinction between civilians and combatants ́ ́ ˇ ́ and Kupre Tadi ski c case c case , Yugoslavia, in particular in the c case, Marti and of the Inter-American Commission on Human Rights in the case relative to the events at La Tablada in Argentina provides further evidence that the obli- gation to make a distinction between civilians and combatants is customary in 35 both international and non-international armed conflicts. The ICRC has called on parties to both international and non-international 36 armed conflicts to respect the distinction between combatants and civilians. Rule 2. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. Practice Volume II, Chapter 1, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts Article 51(2) of Additional Protocol I prohibits “acts or threats of violence the 37 primary purpose of which is to spread terror among the civilian population”. No reservations have been made to this provision. At the Diplomatic Confer- ence leading to the adoption of the Additional Protocols, Mexico stated that Article 51 of Additional Protocol I was so essential that it “cannot be the sub- ject of any reservations whatsoever since these would be inconsistent with the 38 aim and purpose of Protocol I and undermine its basis”. Also at the Diplo- matic Conference, the United Kingdom stated that Article 51(2) was a “valuable 39 reaffirmation” of an existing rule of customary international law. The prohibition of acts or threats of violence aimed at terrorising the civilian 40 population is set forth in a large number of military manuals. Violations of this 35 ́ Tadi ibid. ICJ, Nuclear Weapons case , Advisory Opinion ( c case , Inter- , §§ 61 and 434); ICTY, ́ ibid. , § 435), Marti c case locutory Appeal ( , Review of the Indictment ( ibid. , §§ 437 and 552) ́ ˇ and Kupre c case , Judgement ( ibid. , §§ 441 and 883); Inter-American Commission on Human ski Case 11.137 (Argentina) ibid. , §§ 64, 443 and 810). Rights, ( 36 ibid. , §§ 67–75). See, e.g., the practice of the ICRC ( 37 Additional Protocol I, Article 51(2) (adopted by 77 votes in favour, one against and 16 abstentions) ibid. , § 477). ( 38 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , §§ 146, 307, 536 and 800). 39 United Kingdom, Statement at the Diplomatic Conference leading to the adoption of the Addi- tional Protocols ( ibid. , §§ 319, 537 and 803). 40 See, e.g., the military manuals of Argentina ( ibid. ibid. , § 490), Belgium ( ibid. , , § 489), Australia ( §§ 491–492), Benin ( ibid. , § 493), Cameroon ( ibid. , § 494), Canada ( ibid. , § 495), Colombia ( ibid. , § 496), Croatia ( ibid. , § 497), Ecuador ( ibid. , § 498), France ( ibid. , § 499), Germany ( ibid. , § 500),

70 Rule 2 9 41 The prohibition is rule are an offence under the legislation of numerous States. 42 also supported by official statements. This practice includes that of States not, 43 or not at the time, party to Additional Protocol I. States party to Additional 44 Protocol I have also invoked this rule against States not party. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the prohibition of “methods intended to spread terror among the civilian popula- 45 tion”, the States concerned (Egypt, Iraq, Israel and Syria) replied favourably. It can be argued that the prohibition of acts or threats of violence aimed at ter- rorising the civilian population is further supported by the wider prohibition of “all measures of intimidation or of terrorism” in Article 33 of the Fourth 46 Geneva Convention. Prior to the adoption of this provision, the Report of the Commission on Responsibility set up after the First World War listed “system- 47 atic terror” as a violation of the laws and customs of war. Non-international armed conflicts Article 13(2) of Additional Protocol II prohibits acts or threats of violence the 48 primary purpose of which is to spread terror among the civilian population. In addition, the prohibition is included in other instruments pertaining also to 49 non-international armed conflicts. The prohibition of acts or threats of violence aimed at terrorising the civilian population is set forth in military manuals which are applicable in or have been 50 applied in non-international armed conflicts. Violations of this rule in any ibid. , § 501), Kenya ( ibid. , § 502), Netherlands ( ibid. , § 503), New Zealand ( ibid. , § 504), Hungary ( ibid. Nigeria ( ibid. , § 506), Spain ( ibid. , § 507), Sweden ( ibid. , § 508), Switzerland , § 505), Russia ( ibid. ibid. , § 510), United States ( ibid. , §§ 511–512) and Yugoslavia ( ibid. , § 513). ( , § 509), Togo ( 41 ibid. , § 514), Australia ( ibid. , § 515), Bangladesh ( ibid. , See, e.g., the legislation of Argentina ( § 516), Bosnia and Herzegovina ( ibid. ibid. , § 518), Colombia ( ibid. , § 519), C , § 517), China ( ote ˆ d’Ivoire ( , § 520), Croatia ( ibid. , § 521), Czech Republic ( ibid. , § 522), Ethiopia ( ibid. , § 523), ibid. Ireland ( ibid. , § 524), Lithuania ( ibid. , § 525), Netherlands ( ibid. , § 526), Norway ( ibid. , § 527), Slovakia ( ibid. ibid. , § 529), Spain ( ibid. , § 530) and Yugoslavia ( ibid. , § 531). , § 528), Slovenia ( 42 See, e.g., the statements of Israel ( , § 534), Lebanon ( ibid. , § 535) and United States ( ibid. , ibid. §§ 538–540). 43 ibid. , § 499), Israel ( ibid. , § 534), Kenya ( ibid. , § 502) and United See, e.g., the practice of France ( ibid. States ( , §§ 511–512 and 538–540). 44 See, e.g., the statement of Lebanon vis- a-vis Israel ( ibid. , § 535). ` 45 ibid. , § 556). See ICRC, The International Committee’s Action in the Middle East ( 46 Fourth Geneva Convention, Article 33 ( ibid. , § 476). The relevance of this provision to the present rule is explained in Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 4538. 47 Report of the Commission on Responsibility (cited in Vol. II, Ch. 1, § 481). 48 Additional Protocol II, Article 13(2) (adopted by consensus) ( ibid. , § 479). 49 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the ibid. SFRY, para. 6 ( , § 485); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 486). 50 See, e.g., the military manuals of Argentina ( , § 489), Australia ( ibid. , § 490), Benin ( ibid. , ibid. § 493), Cameroon ( ibid. , § 494), Canada ( ibid. , § 495), Colombia ( ibid. , § 496), Croatia ( ibid. , § 497), Ecuador ( , § 498), Germany ( ibid. , § 500), Hungary ( ibid. , § 501), Kenya ( ibid. , § 502), ibid. Netherlands ( ibid. , § 503), New Zealand ( ibid. , § 504), Russia ( ibid. , § 506), Spain ( ibid. , § 507), Togo ( ibid. , § 510) and Yugoslavia ( ibid. , § 513).

71 10 distinction between civilians and combatants 51 There are armed conflict are an offence under the legislation of many States. also official statements pertaining to non-international armed conflicts invok- 52 ing this rule. It can be argued that the prohibition of acts or threats of violence aimed at terrorising the civilian population is further supported by the wider prohibition 53 of “acts of terrorism” in Article 4(2)(d) of Additional Protocol II. “Acts of terrorism” are specified as war crimes under the Statutes of the International 54 Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone. In his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General noted that violations of Article 4 of Additional Protocol II 55 have long been considered crimes under customary international law. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have gen- 56 erally been condemned by States. Similarly, the UN General Assembly and UN Commission on Human Rights have adopted several resolutions condemn- ing the terrorisation of the civilian population in the conflicts in the former 57 − ́ ́ ˇ Yugoslavia. zi Duki c and Furthermore, the indictments in the c case, Karad ́ ́ and c case Mladi c case before the International Criminal Tribunal for the Gali Former Yugoslavia included charges of terrorising the civilian population in vio- lation of the laws and customs of war, in the first two cases as part of charges of 58 ́ unlawful attack. In its judgement in the Gali c case in 2003, the Trial Chamber found the accused guilty of “acts of violence the primary purpose of which is to spread terror among the civilian population, as set forth in Article 51 of Addi- tional Protocol I, as a violation of the laws or customs of war under Article 3 59 of the Statute of the Tribunal”. 51 ibid. , § 517), Colombia ( ibid. , § 519), Croatia See, e.g., the legislation of Bosnia and Herzegovina ( , § 524), Lithuania ( ibid. ( , § 523), Ireland ( ibid. , § 521), Ethiopia ( ibid. , § 525), Norway ( ibid. , ibid. § 527), Slovenia ( ibid. , § 529), Spain ( ibid. , § 530) and Yugoslavia ( ibid. , § 531); see also the legislation of the Czech Republic ( ibid. ibid. , § 528), the application of , § 522) and Slovakia ( which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 514). 52 ibid. ibid. See, e.g., the statements of Botswana ( , § 540). , § 533) and United States ( 53 ibid. , § 478). The relevance of Additional Protocol II, Article 4(2)(d) (adopted by consensus) ( this provision to the present rule is explained in Yves Sandoz, Christophe Swinarski, Bruno Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 4538. Zimmermann (eds.), 54 ICTR Statute, Article 4(d) (cited in Vol. II, Ch. 1, § 487); Statute of the Special Court for Sierra ibid. Leone, Article 3(d) ( , § 480). 55 UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone ( ibid. , § 545). 56 ibid. , § 534), Lebanon ( ibid. , § 535) and United States ( ibid. , See, e.g., the statements of Israel ( § 540). 57 See, e.g., UN General Assembly, Res. 49/196 ( , § 541) and Res. 53/164 ( ibid. , § 542); UN ibid. Commission on Human Rights, Res. 1992/S-2/1, 1993/7, 1994/72 and 1995/89 ( ibid. , § 543). 58 − ́ ́ ́ ˇ c and Mladi , Initial Indictment ( Karad c case zi Duki , § 551), ICTY, c case , First Indictment ibid. ́ ibid. , § 553) and Gali ( c case , Initial Indictment ( ibid. , § 554). 59 ́ ICTY, Prosecutor v. Stanislav Gali c , Case No. IT-98-29-T, Judgement and Opinion, 5 December 2003, § 769.

72 Rule 3 11 The ICRC has reminded parties to both international and non-international 60 armed conflicts of the prohibition on terrorising the civilian population. Examples Examples of acts of violence cited in practice as being prohibited under this rule include offensive support or strike operations aimed at spreading terror among 61 62 the civilian population, indiscriminate and widespread shelling, and the 63 regular bombardment of cities, but also assault, rape, abuse and torture of 65 64 women and children, and mass killing. The indictments on the grounds of terrorising the civilian population in the above-mentioned cases before the International Criminal Tribunal for the Former Yugoslavia concerned deliber- 66 ate and indiscriminate firing on civilian targets, unlawful firing on civilian 67 gatherings, and a protracted campaign of shelling and sniping upon civilian 68 areas. These examples show that many acts violating the prohibition of acts or threats of violence aimed at terrorising the civilian population are also covered by specific prohibitions. Rule 3. All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel. Practice Volume II, Chapter 1, Section C. Summary State practice establishes this rule as a norm of customary international law in international armed conflicts. For purposes of the principle of distinction (see Rule 1), members of State armed forces may be considered combatants in both international and non-international armed conflicts. Combatant status, on the other hand, exists only in international armed conflicts (see introductory note to Chapter 33). 60 See, e.g., the practice of the ICRC (cited in Vol. II, Ch. 1, §§ 556–558 and 561). 61 Australia, Defence Force Manual ( ibid. , § 490). 62 UN General Assembly, Res. 53/164 ( , § 542). ibid. 63 UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in ibid. , § 546). the Former Yugoslavia, Report ( 64 UN High Commissioner for Human Rights, Report on systematic rape, sexual slavery and ibid. , § 547). slavery-like practices during armed conflicts ( 65 OSCE, Kosovo/Kosova, as seen as told, An analysis of the human rights findings of the OSCE Kosovo Verification Mission ( ibid. , § 549). 66 − ́ Duki ICTY, c case , Initial Indictment ( ibid. , § 551). 67 ˇ ́ ́ zi Karad c and Mladi ibid. c case , First Indictment ( ICTY, , § 553). 68 ́ ICTY, Gali c case , Initial Indictment ( ibid. , § 554).

73 12 distinction between civilians and combatants International armed conflicts This rule goes back to the Hague Regulations, according to which “the armed forces of the belligerent parties may consist of combatants and non- 70 69 combatants”. It is now set forth in Article 43(2) of Additional Protocol I. 71 Numerous military manuals contain this definition of combatants. It is 72 supported by official statements and reported practice. This practice includes 73 that of States not, or not at the time, party to Additional Protocol I. No official contrary practice was found. Non-international armed conflicts Common Article 3 of the Geneva Conventions and Additional Protocol II refer to “armed forces” and Additional Protocol II also to “dissident armed forces and other organized armed groups”. These concepts are not further defined in the practice pertaining to non-international armed conflicts. While State armed forces may be considered combatants for purposes of the principle of distinction (see Rule 1), practice is not clear as to the situation of members of armed opposition groups. Practice does indicate, however, that persons do not enjoy the protection against attack accorded to civilians when they take a direct part in hostilities (see Rule 6). Persons taking a direct part in hostilities in non-international armed conflicts are sometimes labelled “combatants”. For example, in a resolution on respect for human rights in armed conflict adopted in 1970, the UN General Assembly 74 speaks of “combatants in all armed conflicts”. More recently, the term “com- batant” was used in the Cairo Declaration and Cairo Plan of Action for both 75 types of conflicts. However, this designation is only used in its generic mean- ing and indicates that these persons do not enjoy the protection against attack accorded to civilians, but does not imply a right to combatant status or prisoner- of-war status, as applicable in international armed conflicts (see Chapter 33). 69 ibid. , § 571). Hague Regulations, Article 3 ( 70 Additional Protocol I, Article 43(2) (adopted by consensus) ( ibid. , § 572). 71 ibid. , § 574), Australia ( ibid. , § 575), Belgium ( ibid. , See, e.g., the military manuals of Argentina ( ibid. § 576), Benin ( ibid. , § 578), Canada ( ibid. , § 579), Colombia ( ibid. , , § 577), Cameroon ( ibid. , §§ 581–582), Dominican Republic ( ibid. , § 583), Ecuador ( ibid. , § 584), § 580), Croatia ( France ( ibid. , §§ 585–586), Germany ( ibid. , § 587), Hungary ( ibid. , § 588), Indonesia ( ibid. , § 589), Israel ( ibid. ibid. , §§ 591–592), Kenya ( ibid. , § 593), South Korea ( ibid. , , § 590), Italy ( ibid. ibid. , § 596), New Zealand ( ibid. , § 597), Russia § 594), Madagascar ( , § 595), Netherlands ( ibid. , § 598), South Africa ( ibid. , § 599), Spain ( ibid. ( ibid. , § 601), Togo ( ibid. , , § 600), Sweden ( § 602), United Kingdom ( ibid. , § 603) and United States ( ibid. , §§ 604–606). 72 See, e.g., the practice of Argentina ( ibid. , 611), India ( ibid. , § 612), Iraq ( ibid. , § 613), Japan ( ibid. , § 614), Jordan ( ibid. ibid. , § 619). , § 615) and Syria ( 73 See, e.g., the practice of France ( , § 585), Indonesia ( ibid. , § 589), Israel ( ibid. , § 590), Kenya ibid. ( ibid. , § 593), United Kingdom ( ibid. , § 603) and United States ( ibid. , §§ 604–606). 74 UN General Assembly, Res. 2676 (XXV), 9 December 1970, preamble and § 5. 75 Cairo Declaration, Sections 68–69, and Cairo Plan of Action, Section 82, both adopted at the Africa-Europe Summit held under the Aegis of the Organization of African Unity and the European Union, 3–4 April 2000.

74 Rule 3 13 The lawfulness of direct participation in hostilities in non-international armed conflicts is governed by national law. While such persons could also be called “fighters”, this term would be translated as “combatant” in a number of lan- guages and is therefore not wholly satisfactory either. Treaty provisions use different designations that can apply to “fighters” in the context of non-international armed conflicts, including: persons taking active 76 part in the hostilities; members of dissident armed forces or other organized 77 78 armed groups; persons who take a direct part in hostilities; civilians who 79 80 take a direct part in hostilities; civilians taking direct part in hostilities; and 81 combatant adversary. The uncertainty about the qualification of members of armed opposition groups is further addressed in the commentaries to Rules 5 and 6. Interpretation According to this rule, when military medical and religious personnel are mem- bers of the armed forces, they are nevertheless considered non-combatants. According to the First Geneva Convention, temporary medical personnel have to be respected and protected as non-combatants only as long as the medical 82 assignment lasts (see commentary to Rule 25). As is the case for civilians (see Rule 6), respect for non-combatants is contingent on their abstaining from taking a direct part in hostilities. The military manuals of Germany and the United States point out that there can be other non-combatant members of the armed forces besides medical and religious personnel. Germany’s Military Manual explains that “combatants are persons who may take a direct part in hostilities, i.e., participate in the use of a weapon or a weapon-system in an indispensable function”, and specifies, there- fore, that “persons who are members of the armed forces but do not have any combat mission, such as judges, government officials and blue-collar work- 83 ers, are non-combatants”. The US Naval Handbook states that “civil defense personnel and members of the armed forces who have acquired civil defense 84 status” are non-combatants, in addition to medical and religious personnel. Non-combatant members of the armed forces are not to be confused, how- ever, with civilians accompanying armed forces who are not members of the 85 armed forces by definition. 76 Geneva Conventions, common Article 3. 77 Additional Protocol II, Article 1(1) (adopted by 58 votes in favour, 5 against and 29 abstentions) (cited in Vol. II, Ch. 1, § 633). 78 Additional Protocol II, Article 4(1) (adopted by consensus). 79 Additional Protocol II, Article 13(3) (adopted by consensus) ( ibid ., § 756). 80 81 ICC Statute, Article 8(2)(e)(ix). ICC Statute, Article 8(2)(e)(i). 82 First Geneva Convention, Article 25 (cited in Vol. II, Ch. 7, § 7). 83 Germany, Military Manual (cited in Vol. II, Ch. 1, § 587). 84 United States, Naval Handbook ( ibid. , § 605). 85 See Third Geneva Convention, Article 4(A)(4).

75 14 distinction between civilians and combatants While in some countries, entire segments of the population between certain ages may be drafted into the armed forces in the event of armed conflict, only those persons who are actually drafted, i.e., who are actually incorporated into the armed forces, can be considered combatants. Potential mobilisation does 86 not render the person concerned a combatant liable to attack. Rule 4. The armed forces of a party to the conflict consist of all organised armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates. Practice Volume II, Chapter 1, Section D. Summary State practice establishes this rule as a norm of customary international law applicable in international armed conflicts. For purposes of the principle of distinction, it may also apply to State armed forces in non-international armed 87 conflicts. International armed conflicts 88 This rule is set forth in Article 43(1) of Additional Protocol I. Many military manuals specify that the armed forces of a party to the conflict consist of all organised armed groups which are under a command responsible 89 to that party for the conduct of its subordinates. This definition is supported 90 by official statements and reported practice. Practice includes that of States 91 not, or not at the time, party to Additional Protocol I. 86 This conclusion is based on discussions during the second consultation with academic and governmental experts in the framework of this study in May 1999 and the general agreement among the experts to this effect. The experts also considered that it may be necessary to consider the legislation of a State in determining when reservists actually become members of the armed forces. 87 Official Records , Vol. X, CDDH/I/238/Rev. 1, pp. 93–94; see also Yves Sandoz, See CDDH, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 4462. 88 Additional Protocol I, Article 43(1) (adopted by consensus) (cited in Vol. II, Ch. 1, § 631). 89 See, e.g., the military manuals of Argentina ( ibid. , § 637), Australia ( ibid. , § 638), Canada ( ibid. , § 642), Croatia ( ibid. ibid. , § 647), Hungary ( ibid. , § 648), Italy ( ibid. , § 651), , § 644), Germany ( Kenya ( , § 652), Netherlands ( ibid. , § 654), New Zealand ( ibid. , § 655), Nigeria ( ibid. , § 656), ibid. Russia ( ibid. , § 657), Spain ( ibid. , § 659), Sweden ( ibid. , § 660) and United Kingdom ( ibid. , § 662). 90 ibid. , § 670), France ( ibid. , § 671), Germany ( ibid. , § 672), Iran See, e.g., the practice of Belgium ( ( ibid. , § 673), Netherlands ( ibid. , § 676) and Syria ( ibid. , § 677). 91 , § 652), United Kingdom ( ibid. , § 671), Kenya ( ibid. See, e.g., the practice of France ( ibid. , § 662) and United States ( ibid. , § 665).

76 Rule 4 15 In essence, this definition of armed forces covers all persons who fight on behalf of a party to a conflict and who subordinate themselves to its com- mand. As a result, a combatant is any person who, under responsible com- mand, engages in hostile acts in an armed conflict on behalf of a party to the conflict. The conditions imposed on armed forces vest in the group as such. The members of such armed forces are liable to attack. This definition of armed forces builds upon earlier definitions contained in the Hague Regulations and the Third Geneva Convention which sought to determine who are combatants entitled to prisoner-of-war status. Article 1 of the Hague Regulations provides that the laws, rights and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling four con- ditions: 1. to be commanded by a person responsible for his subordinates; 2. to have a fixed distinctive emblem recognizable at a distance; 3. to carry arms openly; and 4. to conduct their operations in accordance with the laws and customs of war. It further specifies that in countries where militia or volunteer corps (so-called “irregular” armed forces) constitute the army, or form part of it, they are 92 included under the denomination “army”. This definition is also used in Article 4 of the Third Geneva Convention, with the addition of organised resis- 93 tance movements. The Hague Regulations and the Third Geneva Convention thus consider all members of armed forces to be combatants and require mili- tia and volunteer corps, including organised resistance movements, to comply with four conditions in order for them to be considered combatants entitled to prisoner-of-war status. The idea underlying these definitions is that the reg- ular armed forces fulfil these four conditions and, as a result, they are per se not explicitly enumerated with respect to them. The definition contained in Additional Protocol I does not distinguish between the regular armed forces and other armed groups or units, but defines all armed forces, groups and units which are under a command responsible to a party for the conduct of its sub- ordinates as armed forces of that party. Both definitions express the same idea, namely that all persons who fight in the name of a party to a conflict – who “belong to” a party in the words of Article 4 of the Third Geneva Convention – are combatants. The four conditions contained in the Hague Regulations and the Third Geneva Convention have been reduced to two conditions, the main difference being the exclusion of the requirements of visibility for the definition of armed forces as such. The requirement of visibility is relevant with respect to a combatant’s entitlement to prisoner-of-war status (see Rule 106). Additional Protocol I, therefore, has lifted this requirement from the definition of armed 92 Hague Regulations, Article 1 ( ibid. , § 628). 93 Third Geneva Convention, Article 4 ( ibid. , § 630).

77 16 distinction between civilians and combatants forces (Article 43) and placed it in the provision dealing with combatants and prisoner-of-war status (Article 44). In addition, Article 43 of Additional Protocol I does not mention the require- ment to respect the laws and customs of war but includes a requirement to have an internal disciplinary system to enforce compliance with international humanitarian law, but this change does not substantially alter the definition of armed forces for the purposes of determining those combatants entitled to prisoner-of-war status. The requirement of an internal disciplinary system sup- plements the provisions concerning command responsibility (see Rules 152– 153) and is a corollary to the obligation to issue instructions which comply 94 with international humanitarian law (see commentary to Rule 139). Articles 43 and 44 of Additional Protocol I reaffirm what was already stated in Article 85 of the Third Geneva Convention, namely that “prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention”, that is to say that they retain their status. These provisions “thus preclude any attempt to deny prisoner of war status to members of independent or regular armed forces on the allegation that their force does not enforce some provi- sion of customary or conventional law of armed conflict (as construed by the 95 Detaining Power)”. Only the failure to distinguish oneself from the civilian population (see Rule 106) or being caught as a spy (see Rule 107) or a mercenary (see Rule 108) warrants forfeiture of prisoner-of-war status. The definition in Article 43 of Additional Protocol I is now generally applied to all forms of armed groups who belong to a party to an armed conflict to deter- mine whether they constitute armed forces. It is therefore no longer necessary to distinguish between regular and irregular armed forces. All those fulfilling the conditions in Article 43 of Additional Protocol I are armed forces. Incorporation of paramilitary or armed law enforcement agencies into armed forces Specific practice was found concerning the incorporation of paramilitary or armed law enforcement agencies, such as police forces, gendarmerie and con- 96 Examples of such paramilitary agencies incor- stabulary, into armed forces. porated into the armed forces of a State include the Special Auxiliary Force attached to Bishop Muzorewa’s United African National Congress in Zim- babwe, which was integrated into the national army after the Bishop became 94 Commentary on the Addi- See Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), , ICRC, Geneva, 1987, § 1675. tional Protocols 95 New Rules for Victims of Armed Conflicts Michael Bothe, Karl Josef Partsch, Waldemar A. Solf, , Martinus Nijhoff, The Hague, 1982, p. 239. 96 See, e.g., the practice of Argentina (cited in Vol. II, Ch. 1, § 688), Belgium ( ibid. , § 685), Canada ( ibid. , § 689), France ( ibid. , § 686), Germany ( ibid. , § 690), Netherlands ( ibid. , § 691), New Zealand ( , § 692), Spain ( ibid. , §§ 693 and 696) and Philippines ( ibid. , § 695) and the reported ibid. practice of India ( ibid. , § 698), South Korea ( ibid. , § 699), Syria ( ibid. , § 700) and Zimbabwe ( ibid. , § 697).

78 Rule 5 17 97 Examples of Prime Minister, and India’s Border Security Force in Assam. armed law enforcement agencies being incorporated into the armed forces 98 include the Philippine Constabulary and Spain’s Guardia Civil. Incorporation of paramilitary or armed law enforcement agencies into armed forces is usually carried out through a formal act, for example, an act of par- liament. In the absence of formal incorporation, the status of such groups will be judged on the facts and in the light of the criteria for defining armed forces. When these units take part in hostilities and fulfil the criteria of armed forces, they are considered combatants. In addition, Additional Protocol I requires a party to the conflict to notify such incorporation to the other parties to the 99 conflict. Belgium and France issued a general notification to this effect to all 100 States party upon ratification of Additional Protocol I. This method of sat- isfying the requirement of notification was explicitly recognised by the Rap- porteur of the Working Group at the Diplomatic Conference leading to the 101 adoption of the Additional Protocols. In the light of the general obligation to distinguish between combatants and civilians (see Rule 1), such notification is important because members of the armed forces of each side have to know who is a member of the armed forces and who is a civilian. Confusion is partic- gendarmerie usually carry arms and wear a ularly likely since police forces and uniform, although in principle their uniforms are not the same as those of the armed forces proper. While notification is not constitutive of the status of the units concerned, it does serve to avoid confusion and thus enhances respect for the principle of distinction. Rule 5. Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians. Practice Volume II, Chapter 1, Section E. Summary State practice establishes this rule as a norm of customary international law applicable in international armed conflicts. It also applies to non-international armed conflicts although practice is ambiguous as to whether members of armed opposition groups are considered members of armed forces or civilians. 97 Military Manual ( ibid. These examples are quoted in New Zealand, , § 692). 98 Philippines, Decree on the Constitution of the Integrated National Police ( ibid. , § 695); Spain, Military Criminal Code ( ibid. , § 696). 99 ibid. , § 684). Additional Protocol I, Article 43(3) (adopted by consensus) ( 100 Belgium, Interpretative declarations made upon ratification of Additional Protocol I ( ibid. , § 685); France, Reservations and declarations made upon ratification of Additional Protocol I ( ibid. , § 686). 101 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Addi- tional Protocols , ICRC, Geneva, 1987, § 1682.

79 18 distinction between civilians and combatants International armed conflicts The definition of civilians as persons who are not members of the armed forces is set forth in Article 50 of Additional Protocol I, to which no reservations 103 102 have been made. It is also contained in numerous military manuals. It is 104 reflected in reported practice. This practice includes that of States not, or 105 not at the time, party to Additional Protocol I. ˇ ́ ski c case in 2000, the International Criminal Bla In its judgement in the Tribunal for the Former Yugoslavia defined civilians as “persons who are not, 106 or no longer, members of the armed forces”. No official contrary practice was found. Some practice adds the condition that civilians are persons who do not participate in hostilities. This additional requirement merely reinforces the rule that a civilian who participates directly in hostilities loses protection against attack (see Rule 6). However, such a civil- ian does not thereby become a combatant entitled to prisoner-of-war status and, upon capture, may be tried under national law for the mere participation in the conflict, subject to fair trial guarantees (see Rule 100). Exception ́ lev , whereby the inhabitants of An exception to this rule is the ee en masse a country which has not yet been occupied, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having time to form themselves into an armed force. Such persons are considered combat- ants if they carry arms openly and respect the laws and customs of war (see commentary to Rule 106). This is a long-standing rule of customary interna- tional humanitarian law already recognised in the Lieber Code and the Brussels 107 Declaration. It is codified in the Hague Regulations and the Third Geneva 108 ́ Convention. ee en masse is Although of limited current application, the lev 109 still repeated in many military manuals, including very recent ones. 102 Additional Protocol I, Article 50 (adopted by consensus) (cited in Vol. II, Ch. 1, § 705). 103 ibid. , § 712), Australia ( ibid. , § 713), Benin ( ibid. See, e.g., the military manuals of Argentina ( , § 714), Cameroon ( , § 715), Canada ( ibid. , § 716), Colombia ( ibid. , § 717), Croatia ( ibid. ibid. , §§ 718–719), Dominican Republic ( ibid. , § 720), Ecuador ( ibid. , § 721), France ( ibid. , §§ 722– 723), Hungary ( ibid. , § 724), Indonesia ( ibid. , § 725), Italy ( ibid. , § 727), Kenya ( ibid. , § 728), Madagascar ( ibid. ibid. , § 730), South Africa ( ibid. , § 731), Spain ( ibid. , , § 729), Netherlands ( ibid. ibid. , § 734), United Kingdom ( ibid. , § 735), United States § 732), Sweden ( , § 733), Togo ( ibid. , §§ 736–737) and Yugoslavia ( ibid. , § 738). ( 104 See, e.g., the reported practice of Israel ( , § 726), Jordan ( ibid. , § 743), Rwanda ( ibid. ibid. , § 746) and Syria ( ibid. , § 747). 105 See, e.g., the practice of France ( ibid. , § 722), Indonesia ( ibid. , § 725), Israel ( ibid. , § 726), Kenya ( ibid. ibid. , § 735) and United States ( ibid. , §§ 736–737). , § 728), United Kingdom ( 106 ˇ ́ ski ICTY, Bla , Judgement ( ibid. , § 751). c case 107 Lieber Code, Articles 49 and 51; Brussels Declaration, Article 10. 108 Hague Regulations, Article 2; Third Geneva Convention, Article 4(A)(6). 109 See, e.g., the military manuals of Benin (cited in Vol. II, Ch. 1, § 714), Cameroon ( ibid. , § 715), Canada ( ibid. , § 764), Kenya ( ibid. , § 728), Madagascar ( ibid. , § 729), South Africa ( ibid. , § 731) and Togo ( ibid. , § 734).

80 Rule 6 19 Non-international armed conflicts The definition that “any person who is not a member of armed forces is con- sidered to be a civilian” and that “the civilian population comprises all persons 110 who are civilians” was included in the draft of Additional Protocol II. The first part of this definition was amended to read that “a civilian is anyone who is not a member of the armed forces or of an organized armed group” and both parts were adopted by consensus in Committee III of the Diplomatic Con- 111 ference leading to the adoption of the Additional Protocols. However, this definition was dropped at the last moment of the conference as part of a package 112 aimed at the adoption of a simplified text. As a result, Additional Protocol II does not contain a definition of civilians or the civilian population even though 113 these terms are used in several provisions. It can be argued that the terms “dissident armed forces or other organized armed groups . . . under responsible command” in Article 1 of Additional Protocol II inferentially recognise the essential conditions of armed forces, as they apply in international armed con- flict (see Rule 4), and that it follows that civilians are all persons who are 114 not members of such forces or groups. Subsequent treaties, applicable to non-international armed conflicts, have similarly used the terms civilians and 115 civilian population without defining them. While State armed forces are not considered civilians, practice is not clear as to whether members of armed opposition groups are civilians subject to Rule 6 on loss of protection from attack in case of direct participation or whether mem- bers of such groups are liable to attack as such, independently of the operation of Rule 6. Although the military manual of Colombia defines the term civil- ians as “those who do not participate directly in military hostilities (internal 116 conflict, international conflict)”, most manuals define civilians negatively with respect to combatants and armed forces and are silent on the status of members of armed opposition groups. Rule 6. Civilians are protected against attack unless and for such time as they take a direct part in hostilities. Practice Volume II, Chapter 1, Section F. 110 Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 25 ( , § 706). ibid. 111 Draft Additional Protocol II, Article 25 as adopted by Committee III ( ibid. , § 706). 112 See ibid. , § 706. 113 Additional Protocol II, Articles 13–15 and 17–18. 114 Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts , Martinus Nijhoff, The Hague, 1982, p. 672. 115 See, e.g., Amended Protocol II to the CCW, Article 3(7)–(11); Protocol III to the CCW, Article 2; Ottawa Convention, preamble; ICC Statute, Article 8(2)(e)(i), (iii) and (viii). 116 Colombia, Instructors’ Manual ( ibid. , § 717).

81 20 distinction between civilians and combatants Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The use of human shields is the subject of Rule 97. International armed conflicts The rule whereby civilians lose their protection against attack when and for such time as they take a direct part in hostilities is contained in Article 51(3) 117 of Additional Protocol I, to which no reservations have been made. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 51 of Additional Protocol I was so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its 118 basis”. Also at the Diplomatic Conference, the United Kingdom stated that the exception to the civilian immunity from attack contained in Article 51(3) was a “valuable reaffirmation” of an existing rule of customary interna- 119 tional law. Upon ratification of the Convention on Certain Conventional Weapons, the United Kingdom declared that civilians enjoyed the protection of the Convention “unless and for such time as they take a direct part in 120 hostilities”. Numerous military manuals state that civilians are not protected against 121 attack when they take a direct part in hostilities. The rule is supported 122 by official statements and reported practice. This practice includes that of 123 States not, or not at the time, party to Additional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect civilian immunity from 117 Additional Protocol I, Article 51(3) (adopted by 77 votes in favour, one against and 16 absten- tions) ( ibid. , § 755). 118 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols ( , § 800). ibid. 119 United Kingdom, Statement at the Diplomatic Conference leading to the adoption of the Addi- ibid. , § 803). tional Protocols ( 120 ibid. United Kingdom, Declaration made upon ratification of the CCW ( , § 757). 121 ibid. ibid. , § 763), Canada ( ibid. , See, e.g., the military manuals of Australia ( , § 762), Benin ( § 764), Colombia ( , § 765), Croatia ( ibid. , § 766), Dominican Republic ( ibid. , § 767), Ecuador ibid. ( ibid. , § 768), France ( ibid. , § 769), Germany ( ibid. , § 770), India ( ibid. , § 771), Indonesia ( ibid. , § 772), Italy ( ibid. ibid. , § 774), Madagascar ( ibid. , § 775), Netherlands ( ibid. , , § 773), Kenya ( ibid. ibid. , §§ 779–780), South Africa ( ibid. , § 781), §§ 776–777), New Zealand ( , § 778), Nigeria ( ibid. , § 782), Sweden ( ibid. , § 783), Togo ( Spain ( , § 784), United Kingdom ( ibid. , § 786), ibid. United States ( ibid. , §§ 787–788) and Yugoslavia ( ibid. , § 789). 122 See, e.g., the statements of Belgium ( ibid. , § 792) and United States ( ibid. , §§ 804–806) and the , § 799) and United reported practice of Chile ( ibid. , § 796), Malaysia ( ibid. , § 793), Jordan ( ibid. States ( ibid. , § 807). 123 See, e.g., the practice of France ( ibid. , § 769), India ( ibid. , § 771), Indonesia ( ibid. , § 772), Kenya , § 779), United Kingdom ( ( , § 774), Malaysia ( ibid. , § 799), Nigeria ( ibid. ibid. ibid. , § 786) and United States ( ibid. , §§ 787–788 and 804–807).

82 Rule 6 21 attack, unless and for such time as they took a direct part in hostilities, the 124 States concerned (Egypt, Iraq, Israel and Syria) replied favourably. Non-international armed conflicts Pursuant to Article 13(3) of Additional Protocol II, civilians are immune from direct attack “unless and for such time as they take a direct part in 125 hostilities”. In addition, this rule is set forth in other instruments pertaining 126 also to non-international armed conflicts. The rule that civilians are not protected against attack when they take a direct part in hostilities is included in many military manuals which are applicable 127 in or have been applied in non-international armed conflicts. In the case concerning the events at La Tablada in Argentina, the Inter- American Commission on Human Rights held that civilians who directly take part in fighting, whether singly or as members of a group, thereby become legitimate military targets but only for such time as they actively participate 128 in combat. To the extent that members of armed opposition groups can be considered civilians (see commentary to Rule 5), this rule appears to create an imbalance between such groups and governmental armed forces. Application of this rule would imply that an attack on members of armed opposition groups is only lawful for “such time as they take a direct part in hostilities” while an attack on members of governmental armed forces would be lawful at any time. Such imbalance would not exist if members of armed opposition groups were, due to their membership, either considered to be continuously taking a direct part in hostilities or not considered to be civilians. It is clear that the lawfulness of an attack on a civilian depends on what exactly constitutes direct participation in hostilities and, related thereto, when direct participation begins and when it ends. As explained below, the meaning of direct participation in hostilities has not yet been clarified. It should be noted, however, that whatever meaning is given to these terms, immunity from attack does not imply immunity from arrest and prosecution. 124 ibid. , § 813). See ICRC, The International Committee’s Action in the Middle East ( 125 Additional Protocol II, Article 13(3) (adopted by consensus) ( ibid. , § 756). 126 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , § 759); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 760); UN Secretary-General’s Bulletin, ibid. Section 5.2 ( , § 761). 127 ibid. , § 762), Benin ( ibid. , § 763), Colombia ( ibid. , See, e.g., the military manuals of Australia ( ibid. , § 766), Ecuador ( ibid. , § 768), Germany ( ibid. , § 770), Italy ( ibid. , § 773), § 765), Croatia ( Kenya ( ibid. , § 774), Madagascar ( ibid. , § 775), Netherlands ( ibid. , § 776), Nigeria ( ibid. , § 779), , South Africa ( , § 781), Spain ( ibid. , § 782), Togo ( ibid. , § 784) and Yugoslavia ( ibid. ibid. § 789). 128 Inter-American Commission on Human Rights, Case 11.137 (Argentina) ( ibid. , § 810).

83 22 distinction between civilians and combatants Definition A precise definition of the term “direct participation in hostilities” does not exist. The Inter-American Commission on Human Rights has stated that the term “direct participation in hostilities” is generally understood to mean “acts which, by their nature or purpose, are intended to cause actual harm to enemy 129 ́ personnel and eriel ”. mat Loss of protection against attack is clear and uncon- tested, as evidenced by several military manuals, when a civilian uses weapons or other means to commit acts of violence against human or material enemy 130 forces. But there is also a lot of practice which gives little or no guidance on the interpretation of the term “direct participation”, stating, for example, that the assessment of direct participation has to be made on a case-by-case basis or simply repeating the general rule that direct participation causes civil- 131 ians to lose protection against attack. The military manuals of Ecuador and the United States give several examples of acts constituting direct participa- tion in hostilities, such as serving as guards, intelligence agents or lookouts 132 on behalf of military forces. The Report on the Practice of the Philippines similarly considers that civilians acting as spies, couriers or lookouts lose their 133 protection against attack. In a report on human rights in Colombia, the Inter-American Commission on Human Rights sought to distinguish “direct” from “indirect” participation: Civilians whose activities merely support the adverse party’s war or military effort or otherwise only indirectly participate in hostilities cannot on these grounds alone be considered combatants. This is because indirect participation, such as selling goods to one or more of the armed parties, expressing sympathy for the cause of one of the parties or, even more clearly, failing to act to prevent an incursion by one of the armed parties, does not involve acts of violence which pose an immediate 134 threat of actual harm to the adverse party. 129 Inter-American Commission on Human Rights, Third report on human rights in Colombia ( ibid. , § 811). 130 ibid ibid ., § 821), Ecuador ( ibid See, e.g., the military manuals of Australia ( ., ., § 820), Belgium ( ., § 823), India ( ibid ., § 824), Netherlands ( ibid ., § 825), United States § 822), El Salvador ( ibid ( ., §§ 827 and 830) and Yugoslavia ( ibid ., § 831). ibid 131 ibid See, e.g., Geneva Conventions, Common Article 3 ( ., § 754); Additional Protocol I, Article 51(3) (adopted by 77 votes in favour, one against and 16 abstentions) ( ibid ., § 755); Addi- tional Protocol II, Article 13(3) (adopted by consensus) ( ., § 756); Memorandum of Under- ibid standing on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid ., § 759); Agree- ment on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid ., § 760); UN Secretary-General’s Bulletin, Section 5.2 ( ibid ., § 761); the practice of Australia ( ibid ibid ., § 792), Benin ( ibid ., § 763), Canada ( ibid ., § 764), ., § 762), Belgium ( ibid ibid ., § 766), Dominican Republic ( ibid ., § 767), Ecuador Colombia ( ., § 765), Croatia ( ibid ., § 768), France ( ibid ., § 769), Germany ( ibid ., § 770), India ( ( ., § 771), Indonesia ( ibid ., ibid § 772), Italy ( ibid ., § 773), Jordan ( ibid ., § 796), Kenya ( ibid ., § 774), Madagascar ( ibid ., § 775), Malaysia ( ibid ., § 799), Netherlands ( ibid ., § 776), New Zealand ( ibid ., § 778), Spain ( ibid ., § 782), Sweden ( ibid ibid ., § 784), United Kingdom ( ibid ., §§ 757 and 786), United ., § 783), Togo ( ibid. ibid States ( ., § 789); Inter-American Commission , §§ 787–788 and 804–806), Yugoslavia ( on Human Rights, ( ibid. , § 810). Case 11.137 (Argentina) 132 Ecuador, Naval Manual ( ibid. , § 822); United States, Naval Handbook ( ibid. , § 830). 133 Report on the Practice of the Philippines ( ibid. , § 849). 134 Inter-American Commission on Human Rights, Third report on human rights in Colombia ( ibid. , § 811).

84 Rule 6 23 The distinction between direct and indirect participation had previously been developed by the Special Representative of the UN Commission on Human 135 Rights for El Salvador. It is clear, however, that international law does not prohibit States from adopting legislation that makes it a punishable offence for anyone to participate in hostilities, whether directly or indirectly. The Report on the Practice of Rwanda makes a distinction between acts that constitute direct participation in international and non-international armed conflicts and excludes logistical support in non-international armed conflicts from acts that constitute direct participation. According to the responses of Rwandan army officers to a questionnaire referred to in the report, unarmed civilians who follow their armed forces during an international armed conflict in order to provide them with food, transport munitions or carry messages, for example, lose their status as civilians. In the context of a non-international armed conflict, however, unarmed civilians who collaborate with one of the parties to the conflict always remain civilians. According to the report, this distinction is justified by the fact that in internal armed conflicts civilians are 136 forced to cooperate with the party that holds them in its power. It is fair to conclude, however, that outside the few uncontested examples cited above, in particular use of weapons or other means to commit acts of violence against human or material enemy forces, a clear and uniform def- inition of direct participation in hostilities has not been developed in State 137 practice. Several military manuals specify that civilians working in military objec- tives, for example, munitions factories, do not participate directly in hostilities 138 but must assume the risks involved in an attack on that military objective. The injuries or death caused to such civilians are considered incidental to an attack upon a legitimate target which must be minimised by taking all feasible precautions in the choice of means and methods, for example, by attacking at night (see Rule 17). The theory that such persons must be considered quasi- combatants, liable to attack, finds no support in modern State practice. Situations of doubt as to the character of a person The issue of how to classify a person in case of doubt is complex and difficult. In the case of international armed conflicts, Additional Protocol I has sought to resolve this issue by stating that “in case of doubt whether a person is a 135 UN Commission on Human Rights, Special Representative on the Situation of Human Rights in El Salvador, Final Report ( , § 853). ibid. 136 Report on the Practice of Rwanda ( , § 850). ibid. 137 The ICRC has sought to clarify the notion of direct participation by means of a series of expert meetings that began in 2003. 138 See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 2, § 635), Canada ( ibid. , § 636), Colombia ( ibid. , § 637), Croatia ( ibid. , § 638), Ecuador ( ibid. , § 639), Germany ( ibid. , § 640), , Hungary ( , § 641), Madagascar ( ibid. , § 642), Netherlands ( ibid. , § 643), New Zealand ( ibid. ibid. § 644), Spain ( ibid. , §§ 645–646), Switzerland ( ibid. , § 647) and United States ( ibid. , § 648).

85 24 distinction between civilians and combatants 139 Some States have civilian, that person shall be considered to be a civilian”. 140 written this rule into their military manuals. Others have expressed reserva- tions about the military ramifications of a strict interpretation of such a rule. In particular, upon ratification of Additional Protocol I, France and the United Kingdom expressed their understanding that this presumption does not over- ride commanders’ duty to protect the safety of troops under their command or to preserve their military situation, in conformity with other provisions of 141 Additional Protocol I. The US Naval Handbook states that: Direct participation in hostilities must be judged on a case-by-case basis. Combat- ants in the field must make an honest determination as to whether a particular civilian is or is not subject to deliberate attack based on the person’s behavior, 142 location and attire, and other information available at the time. In the light of the foregoing, it is fair to conclude that when there is a situ- ation of doubt, a careful assessment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. One cannot automatically attack anyone who might appear dubious. In the case of non-international armed conflicts, the issue of doubt has hardly been addressed in State practice, even though a clear rule on this subject would be desirable as it would enhance the protection of the civilian popula- tion against attack. In this respect, the same balanced approach as described above with respect to international armed conflicts seems justified in non- international armed conflicts. 139 Additional Protocol I, Article 50(1) (adopted by consensus) (cited in Vol. II, Ch. 1, § 887). 140 See, e.g., the military manuals of Argentina ( ibid. , § 893), Australia ( ibid. , § 894), Cameroon ( ibid. , § 895), Canada ( ibid. , § 896), Colombia ( ibid. , § 897), Croatia ( ibid. , § 898), Hungary ( , § 900), Kenya ( ibid. , § 901), Madagascar ( ibid. , § 902), Netherlands ( ibid. , § 903), South ibid. Africa ( ibid. , § 904), Spain ( ibid. , § 905), Sweden ( ibid. , § 906) and Yugoslavia ( ibid. , § 908). 141 ibid. , France, Declarations and reservations made upon ratification of Additional Protocol I ( § 888); United Kingdom, Declarations and reservations made upon ratification of Additional Protocol I ( ibid. , § 889). 142 United States, Naval Handbook ( ibid. , § 830).

86 chapter 2 DISTINCTION BETWEEN CIVILIAN OBJECTS AND MILITARY OBJECTIVES Rule 7. The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects. Practice Volume II, Chapter 2, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The three components of this rule are interrelated and the practice pertaining to each reinforces the validity of the others. Belligerent reprisals against civilian objects are discussed in Chapter 41. International armed conflicts This rule is codified in Articles 48 and 52(2) of Additional Protocol I, to which 1 At the Diplomatic Conference leading to no reservations have been made. the adoption of the Additional Protocols, Mexico stated that Article 52 was so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and under- 2 mine its basis”. The prohibition on directing attacks against civilian objects is also set forth in Amended Protocol II and Protocol III to the Convention on 3 Certain Conventional Weapons. In addition, under the Statute of the Interna- tional Criminal Court, “intentionally directing attacks against civilian objects, that is, objects which are not military objectives”, constitutes a war crime in 4 international armed conflicts. 1 Additional Protocol I, Article 48 (adopted by consensus) (cited in Vol. II, Ch. 2, § 1) and Article ibid. , § 50). 52(2) (adopted by 79 votes in favour, none against and 7 abstentions) ( 2 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , § 79). 3 ibid. , § 107); Protocol III to the CCW, Article 2(1) Amended Protocol II to the CCW, Article 3(7) ( ( ibid. , § 106). 4 ICC Statute, Article 8(2)(b)(ii) ( ibid. , § 108). 25

87 26 civilian objects and military objectives The obligation to distinguish between civilian objects and military objectives and the prohibition on directing attacks against civilian objects is contained in 5 a large number of military manuals. Sweden’s IHL Manual, in particular, iden- tifies the principle of distinction as set out in Article 48 of Additional Protocol I 6 as a rule of customary international law. Many States have adopted legislation 7 making it an offence to attack civilian objects during armed conflict. There are 8 also numerous official statements invoking this rule. This practice includes 9 that of States not, or not at the time, party to Additional Protocol I. Nuclear In their pleadings before the International Court of Justice in the , several States invoked the principle of distinction between civil- Weapons case 10 ian objects and military objectives. In its advisory opinion, the Court stated that the principle of distinction was one of the “cardinal principles” of inter- national humanitarian law and one of the “intransgressible principles of inter- 11 national customary law”. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the distinction between civilian objects and military objectives, the States con- 12 cerned (Egypt, Iraq, Israel and Syria) replied favourably. Non-international armed conflicts The distinction between civilian objects and military objectives was included in the draft of Additional Protocol II but was dropped at the last moment as 5 See, e.g., the military manuals of Argentina, Australia, Belgium, Benin, Cameroon, Canada, Croatia, France, Germany, Hungary, Israel, Netherlands, New Zealand, Nigeria, Philippines, Spain, Sweden, Switzerland, Togo and United States ( ibid. , § 7), Indonesia ( ibid. , § 8), ibid. Sweden ( , § 9), Argentina, Australia, Belgium, Benin, Cameroon, Canada, Colombia, Croatia, Ecuador, France, Germany, Italy, Kenya, Lebanon, Madagascar, Netherlands, New Zealand, Nigeria, South Africa, Spain, Togo, United Kingdom, United States and Yugoslavia ( ibid. , § 116) and United States ( ibid. , § 117). ibid. , § 115), Argentina ( 6 IHL Manual ( ibid. , § 9). Sweden, 7 ibid. , § 119), Azerbaijan ( ibid. , § 120), Canada ( ibid. , § 122), See, e.g., the legislation of Australia ( ibid. Congo ( ibid. , § 124), Estonia ( ibid. , § 126), Georgia ( ibid. , § 127), Germany , § 123), Croatia ( , § 130), Italy ( ibid. ibid. , § 129), Ireland ( ibid. ( ibid. , § 131), Mali ( ibid. , § 132), , § 128), Hungary ( Netherlands ( ibid. , § 133), New Zealand ( ibid. , § 134), Norway ( ibid. , § 136), Slovakia ( ibid. , § 137), Spain ( ibid. ibid. , § 140) and Yemen ( ibid. , § 141); see also , § 138), United Kingdom ( ibid. , § 118), Burundi ( , § 121), El Salvador ( ibid. , § 125), the draft legislation of Argentina ( ibid. , § 135) and Trinidad and Tobago ( ibid. , § 139). Nicaragua ( ibid. 8 ibid. , 145), Egypt ( ibid. , § 146), EC and its member States, See, e.g., the statements of Croatia ( USSR and United States ( ibid. ibid. , § 148), Iran ( ibid. , § 149), Iraq ( ibid. , § 150), , § 147), France ( Mexico ( , § 151), Mozambique ( ibid. , § 152), Slovenia ( ibid. , § 155), Sweden ( ibid. , § 156), ibid. United Arab Emirates ( ibid. , § 157), United Kingdom ( ibid. , §§ 158–159) and United States ( ibid. , §§ 160–163). 9 ibid. ibid. , §§ 7, 115 and 148), Indonesia ( ibid. , See, e.g., the practice of Egypt ( , § 146), France ( ibid. , § 149), Iraq ( ibid. § 8), Iran ( ibid. , § 115), United Kingdom ( ibid. , §§ 115 , § 150), Kenya ( and 158–159) and United States ( ibid. , §§ 7, 115, 117 and 160–163). 10 See the pleadings before the ICJ in the Nuclear Weapons case by Egypt ( ibid. , § 16), Iran ( ibid. , § 23), Japan ( , § 25), Sweden ( ibid. , § 156) and United Kingdom ( ibid. , § 32). ibid. 11 ICJ, Nuclear Weapons case , Advisory Opinion ( ibid. , § 179). 12 See ICRC, The International Committee’s Action in the Middle East ( ibid. , § 102).

88 Rule 7 27 13 As a result, part of a package aimed at the adoption of a simplified text. Additional Protocol II does not contain this principle nor the prohibition on directing attacks against civilian objects, even though it has been argued that the concept of general protection in Article 13(1) of Additional Protocol II is 14 broad enough to cover it. The prohibition on directing attacks against civil- ian objects has, however, been included in more recent treaty law applicable in non-international armed conflicts, namely Amended Protocol II to the Conven- 15 tion on Certain Conventional Weapons. This prohibition is also contained in Protocol III to the Convention on Certain Conventional Weapons, which has been made applicable in non-international armed conflicts pursuant to an 16 amendment of Article 1 of the Convention adopted by consensus in 2001. In addition, the Second Protocol to the Hague Convention for the Protection of Cultural Property uses the principle of distinction between civilian objects and military objectives as a basis to define the protection due to cultural property 17 in non-international armed conflicts. The Statute of the International Criminal Court does not explicitly define attacks on civilian objects as a war crime in non-international armed conflicts. It does, however, define the destruction of the property of an adversary as a war crime unless such destruction be “imperatively demanded by the necessities 18 of the conflict”. Therefore, an attack against a civilian object constitutes a war crime under the Statute inasmuch as such an attack is not imperatively demanded by the necessities of the conflict. The destruction of property is subject to Rule 50 and the practice establishing that rule also supports the existence of this rule. It is also relevant that the Statute defines attacks again installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission as a war crime in non-international armed conflicts, as long as these objects “are entitled to the protection given to . . . civilian objects 19 under the international law of armed conflict”. In addition, the prohibition on directing attacks against civilian objects is included in other instruments pertaining also to non-international armed 20 conflicts. 13 Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to ibid. , § 2). the adoption of the Additional Protocols, Article 24(1) ( 14 Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), New Rules for Victims of Armed , Martinus Nijhoff, The Hague, 1982, p. 677. Conflicts 15 Amended Protocol II to the CCW, Article 3(7) (cited in Vol. II, Ch. 2, § 107). 16 Protocol III to the CCW, Article 2(1) ( ibid. , § 106). 17 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 6(a) (cited in Vol. II, Ch. 12, § 21). 18 19 ICC Statute, Article 8(2)(e)(xii). ICC Statute, Article 8(2)(e)(iii). 20 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 (cited in Vol. II, Ch. 2, §§ 3, 60 and 111); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. ,§§4,61and 112); San Remo Manual, paras. 39 and 41 ( ibid. , §§ 5 and 62); UN Secretary-General’s Bulletin, Section 5.1 ( ibid. , §§ 6, 63 and 113); Cairo Declaration on Human Rights in Islam, Article 3(b) ( ibid. , § 109); Hague Statement on Respect for Humanitarian Principles ( ibid. , § 110).

89 28 civilian objects and military objectives The obligation to distinguish between civilian objects and military objectives and the prohibition on directing attacks against civilian objects is included in military manuals which are applicable in or have been applied in non- 21 international armed conflicts. Numerous States have adopted legislation 22 making it an offence to attack civilian objects during any armed conflict. 23 There are, further- There is also some national case-law based on this rule. more, a number of official statements pertaining to non-international armed 24 conflicts which refer to this rule. The statements before the International Court of Justice in the Nuclear Weapons case referred to above were couched in general terms applicable in all armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. States and international organisations have generally condemned alleged attacks against civilian objects, for example, during the conflicts in Bosnia and Herzegovina, Lebanon, Sudan and between 25 Iran and Iraq. As early as 1938, the Assembly of the League of Nations stated that “objectives aimed at from the air must be legitimate military objectives 26 and must be identifiable”. More recently, in a resolution on protection of civilians in armed conflicts adopted in 1999, the UN Security Council strongly 27 condemned all “attacks on objects protected under international law”. The jurisprudence of the International Court of Justice and of the Interna- tional Criminal Tribunal for the Former Yugoslavia provides further evidence that the prohibition on attacking civilian objects is customary in both interna- 28 tional and non-international armed conflicts. 21 ibid. , See, e.g., the military manuals of Benin, Croatia, Germany, Nigeria, Philippines and Togo ( § 7) and Benin, Colombia, Croatia, Ecuador, Germany, Italy, Kenya, Lebanon, Madagascar, South Africa, Togo and Yugoslavia ( , § 115). ibid. 22 ibid. , § 119), Azerbaijan ( , § 120), Canada ( ibid. , § 122), See, e.g., the legislation of Australia ( ibid. , § 123), Croatia ( ibid. , § 124), Estonia ( ibid. , § 126), Georgia ( ibid. , § 127), Germany Congo ( ibid. ibid. , § 128), New Zealand ( ibid. , § 134), Norway ( ( , § 136), Spain ( ibid. , § 138) and United ibid. Kingdom ( , § 140); see also the legislation of Hungary ( ibid. , § 129), Italy ( ibid. , § 131) and ibid. Slovakia ( , § 137), the application of which is not excluded in time of non-international ibid. armed conflict, and the draft legislation of Argentina ( ibid. , § 118), Burundi ( ibid. , § 121), El Salvador ( ibid. , § 125), Nicaragua ( ibid. , § 135) and Trinidad and Tobago ( ibid. , § 139). 23 See, e.g., Colombia, ( ibid. , § 142); Croatia, RA. R. case ( ibid. , Administrative Case No. 9276 § 143). 24 , § 147) and of Mozambique ( ibid. , See the statements of the EC and its member States ( ibid. ibid. ibid. , § 147) and United States ( ibid. , § 147). § 152), Slovenia ( , § 155), USSR ( 25 ibid. , § 145), ibid. See, e.g., the statements of the EC and its member States ( , § 147) and of Croatia ( ibid. , § 155), USSR ( ibid. , § 149), Slovenia ( ibid. Egypt ( ibid. , § 147), United States , § 146), Iran ( ibid. , § 147) and United Kingdom ( ibid. , § 159); UN Security Council, Res. 1052 ( ibid. , § 164); ( UN General Assembly, Res. 50/193 ( ibid. , 168) and Res. 51/112 ( ibid. , § 169); UN Commission on Human Rights, Res. 1993/7 ( ibid. , § 171) and Res. 1995/89 ( ibid. , , § 170), Res. 1994/75 ( ibid. § 173); Contact Group of the OIC (Egypt, Iran, Pakistan, Saudi Arabia, Senegal and Turkey), ibid. , § 177). Letter to the President of the UN Security Council ( 26 ibid. , § 167). League of Nations, Assembly, Resolution adopted on 30 September 1938 ( 27 UN Security Council, Res. 1265 ( ibid. , § 165). 28 ˇ ́ , Advisory Opinion ( ibid. , § 179); ICTY, Kupre ICJ, ski Nuclear Weapons case c case , Judgement ˇ ́ , § 180) and Kordi ( c and ibid. Cerkez case , Decision on the Joint Defence Motion and Judgement ( ibid. , § 182).

90 Rule 8 29 The Plan of Action for the years 2000–2003, adopted by the 27th Interna- tional Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict respect “the total ban on directing attacks . . . 29 against civilian objects”. The ICRC has called on parties to both interna- tional and non-international armed conflicts to respect the distinction between civilian objects and military objectives and not to direct attacks at civilian 30 objects. Interpretation Several States have stressed that the rule contained in Article 52(2) of Addi- tional Protocol I, which provides that “attacks shall be limited strictly to mili- tary objectives”, only prohibits direct attacks against civilian objects and does not deal with the question of incidental damage resulting from attacks directed 31 against military objectives. The purpose of these statements is to empha- sise that an attack which affects civilian objects is not unlawful as long as it is directed against a military objective and the incidental damage to civilian objects is not excessive. This consideration is taken into account in the formu- lation of the current rule by the use of the words “attacks directed against”. mutatis mutandis The same consideration applies to Rule 1. Rule 8. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. Practice Volume II, Chapter 2, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. 29 27th International Conference of the Red Cross and Red Crescent, Plan of Action for the years 2000–2003 (adopted by consensus) ( ibid. , § 178). 30 ibid. , §§ 185–186 and 188–193). See, e.g., the practice of the ICRC ( 31 See the reservations and declarations made upon ratification of the Additional Protocols and other statements by Australia ( ibid. , § 51), Canada ( ibid. , §§ 52 and 71), France ( ibid. , § 53), Federal Republic of Germany ( , § 75), Italy ( ibid. , § 54), Netherlands ( ibid. , § 80), New ibid. , § 92). ibid. , § 55), United Kingdom ( ibid. , §§ 56 and 86) and United States ( ibid. Zealand (

91 30 civilian objects and military objectives International armed conflicts This definition of military objectives is set forth in Article 52(2) of Additional 32 Protocol I, to which no reservations have been made. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 52 was so essential that it “cannot be the subject of any reserva- tions whatsoever since these would be inconsistent with the aim and purpose of 33 Protocol I and undermine its basis”. The definition has been used consis- tently in subsequent treaties, namely in Protocol II, Amended Protocol II and Protocol III to the Convention on Certain Conventional Weapons, as well as in the Second Protocol to the Hague Convention for the Protection of Cultural 34 Property. 35 Numerous military manuals contain this definition of military objectives. 36 It is supported by official statements. This practice includes that of States 37 not, or not at the time, party to Additional Protocol I. This definition of military objectives was found to be customary by the Committee Established to Review the NATO Bombing Campaign Against the 38 Federal Republic of Yugoslavia. Non-international armed conflicts Although this definition of military objectives was not included in Additional Protocol II, it has subsequently been incorporated into treaty law applicable in non-international armed conflicts, namely Amended Protocol II to the Con- vention on Certain Conventional Weapons and the Second Protocol to the 39 Hague Convention for the Protection of Cultural Property. It is also con- tained in Protocol III to the Convention on Certain Conventional Weapons, 32 Additional Protocol I, Article 52(2) (adopted by 79 votes in favour, none against and 7 abstentions) ibid. , § 319). ( 33 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , § 353). 34 Protocol II to the CCW, Article 2(4) ( , § 321); Amended Protocol II to the CCW, Article 2(6) ibid. ( , § 321); Protocol III to the CCW, Article 1(3) ( ibid. , § 321); Second Protocol to the Hague ibid. Convention for the Protection of Cultural Property, Article 1(f) ( , § 322). ibid. 35 See, e.g., the military manuals of Argentina, Australia, Belgium, Benin, Cameroon, Canada, Colombia, Croatia, France, Germany, Hungary, Italy, Kenya, Madagascar, Netherlands, New Zealand, South Africa, Spain, Sweden, Togo, United Kingdom and United States ( ibid. , § 328), Ecuador ( ibid. ibid. , § 333), United States ( ibid. , § 339) and Yugoslavia ( ibid. , , § 331), Indonesia ( § 340). 36 ibid. , § 364), Iran ( ibid. , § 347), Iraq ( ibid. , § 348), Israel ( ibid. , See, e.g., the statements of France ( , § 364) and United States ( § 364), Jordan ( ibid. , § 355), Turkey ( ibid. , § 351), Syria ( ibid. , ibid. §§ 350, 360 and 364). 37 See, e.g., the practice of France ( ibid. , § 364), Iran ( ibid. , § 347), Iraq ( ibid. , § 348), Israel ( ibid. , , § 328) and United § 364), Kenya ( ibid. , § 364), United Kingdom ( ibid. , § 328), Turkey ( ibid. States ( ibid. , §§ 328, 350, 360 and 364). 38 Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report ( ibid. , § 365). 39 Amended Protocol II to the CCW, Article 2(6) ( ibid. , § 321); Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 1(f) ( ibid. , § 322).

92 Rule 8 31 which has been made applicable in non-international armed conflicts pur- suant to an amendment of Article 1 of the Convention adopted by consensus 40 in 2001. Military manuals which are applicable in or have been applied in non-international armed conflicts incorporate this definition of military 42 41 objectives. It is also contained in some national legislation. In addition, the definition is included in official statements pertaining to non-international 43 armed conflicts. No contrary practice was found with respect to either international or non- international armed conflicts in the sense that no other definition of a military objective has officially been advanced. The Report on US Practice explains that the United States accepts the customary nature of the definition contained in Article 52(2) of Additional Protocol I and that the formulation used in the US Naval Handbook, namely effective contribution to “the enemy’s war-fighting or war-sustaining capability”, reflects its position that this definition is a wide one which includes areas of land, objects screening other military objectives 44 and war-supporting economic facilities. Interpretation Several States have indicated that in their target selection they will consider the military advantage to be anticipated from an attack as a whole and not from 45 parts thereof. The military manuals of Australia, Ecuador and the United States consider that the anticipated military advantage can include increased 46 security for the attacking forces or friendly forces. Many military manuals state that the presence of civilians within or near mil- 47 itary objectives does not render such objectives immune from attack. This is the case, for example, of civilians working in a munitions factory. This practice indicates that such persons share the risk of attacks on that military objective 40 Protocol III to the CCW, Article 1(3) ( , § 321). ibid. 41 See, e.g., the military manuals of Benin, Canada, Colombia, Croatia, Germany, Italy, Kenya, ibid. , § 328), Ecuador ( ibid. , § 331) and Yugoslavia ( Madagascar, South Africa and Togo ( , ibid. § 340). 42 See, e.g., the legislation of Italy ( , § 341) and Spain ( ibid. , § 342). ibid. 43 ibid. , § 346) and Philippines ( ibid. , § 354). See, e.g., the statements of Colombia ( 44 Report on US Practice ( ibid. Naval Handbook ( ibid. , § 339). , § 361) referring to United States, 45 See the statements of Australia ( , § 329), Canada ( ibid. , § 320), France ( ibid. , § 320), Germany ibid. ibid. , § 332), Italy ( ibid. , § 334), New Zealand ( ibid. ( ibid. , §§ 320 and 337) and , § 336), Spain ( United States ( ibid. , § 359). 46 See the military manuals of Australia ( ibid. , § 329), Ecuador ( ibid. , § 331) and United States ( ibid. , § 339). 47 ibid. , § 635), Canada ( ibid. , § 636), Colombia ( ibid. , See, e.g., the military manuals of Australia ( § 637), Croatia ( ibid. , § 638), Ecuador ( ibid. , § 639), Germany ( ibid. , § 640), Hungary ( ibid. , § 641), Madagascar ( , § 642), Netherlands ( ibid. , § 643), New Zealand ( ibid. , § 644), Spain ibid. , § 648). ibid. , §§ 645–646), Switzerland ( ibid. , § 647) and United States ( ibid. (

93 32 civilian objects and military objectives but are not themselves combatants. This view is supported by official state- 48 ments and reported practice. Such attacks are still subject to the principle of proportionality (see Rule 14) and the requirement to take precautions in attack (see Rules 15–21). The prohibition on using human shields is also relevant to this issue (see Rule 97). Examples State practice often cites establishments, buildings and positions where enemy combatants, their materiel and armaments are located, and military means of 49 transportation and communication as examples of military objectives. As far as dual-use facilities are concerned, such as civilian means of transportation and communication which can be used for military purposes, practice consid- ers that the classification of these objects depends, in the final analysis, on the 50 application of the definition of a military objective. Economic targets that effectively support military operations are also cited as an example of military 51 objectives, provided their attack offers a definite military advantage. In addi- tion, numerous military manuals and official statements consider that an area of land can constitute a military objective if it fulfils the conditions contained 52 in the definition. Rule 9. Civilian objects are all objects that are not military objectives. Practice Volume II, Chapter 2, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The definition of civilian objects has to be read together with the definition of military objectives: only those objects that qualify as military objectives may be attacked; other objects are protected against attack. 48 See, e.g., the statements of Belgium ( , § 651) and United States ( ibid. , §§ 652–653). ibid. 49 ibid See the practice cited in ., §§ 417–492. 50 See the practice cited in ibid ., §§ 493–560. 51 See the practice cited in ibid ., §§ 561–596. 52 See, e.g., the military manuals of Australia ( ibid. , § 601), Belgium ( ibid. , §§ 602–604), Benin ( ibid. ibid. , § 608), France ( ibid. , § 609), Italy ( ibid. , §§ 610–611), Madagascar , § 605), Ecuador ( ( , § 612), Netherlands ( ibid. , § 613), New Zealand ( ibid. , § 614), Spain ( ibid. , § 615), Sweden ibid. ( ibid. , § 616), Togo ( ibid. , § 617), United Kingdom ( ibid. , § 618) and United States ( ibid. , § 619) and the statements of Belgium ( , § 622), Canada ( ibid. , §§ 597 and 623), Federal Republic ibid. of Germany ( ibid. , §§ 597 and 624), France ( ibid. , § 598), Italy ( ibid. , § 597), Netherlands ( ibid. , , § 597), §§ 597, 599 and 625), New Zealand ( , § 597), Pakistan ( ibid. , § 599), Spain ( ibid. ibid. United Kingdom ( ibid. , §§ 597, 599 and 626) and United States ( ibid. , §§ 599 and 627–628).

94 Rule 9 33 International armed conflicts This definition of civilian objects is set forth in Article 52(1) of Additional 53 Protocol I, to which no reservations have been made. At the Diplomatic Con- ference leading to the adoption of the Additional Protocols, Mexico stated that Article 52 was so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of 54 Protocol I and undermine its basis”. The same definition has been used con- sistently in subsequent treaties, namely in Protocol II, Amended Protocol II and 55 Protocol III to the Convention on Certain Conventional Weapons. Upon sig- nature of the Statute of the International Criminal Court, Egypt declared that the term “civilian objects” in the Statute must be understood in accordance 56 with the definition provided in Additional Protocol I. 57 Numerous military manuals contain this definition of civilian objects, including those of States not, or not at the time, party to Additional Pro- 58 tocol I. Non-international armed conflicts Although this definition was not included in Additional Protocol II, it has sub- sequently been incorporated into treaty law applicable in non-international armed conflicts, namely Amended Protocol II to the Convention on Certain 59 Conventional Weapons. This definition of civilian objects is also contained in Protocol III to the Convention on Certain Conventional Weapons, which has been made applicable in non-international armed conflicts pursuant to an 60 amendment of Article 1 of the Convention adopted by consensus in 2001. This definition of civilian objects is also set forth in military manuals which 61 are applicable in or have been applied in non-international armed conflicts. 53 Additional Protocol I, Article 52(1) (adopted by 79 votes in favour, none against and 7 abstentions) ( , § 660). ibid. 54 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional ibid. , § 679). Protocols ( 55 Protocol II to the CCW, Article 2(5) ( , § 661); Amended Protocol II to the CCW, Article 2(7) ibid. ibid. , § 661); Protocol III to the CCW, Article 1(4) ( ( , § 662). ibid. 56 Egypt, Declarations made upon signature of the ICC Statute ( ibid. , § 663). 57 See, e.g., the military manuals of Argentina, Australia, Cameroon, Canada, Colombia, Kenya, Madagascar, Netherlands, South Africa, Spain, United Kingdom and United States ( , § 665), ibid. ibid. ibid. , § 667), Ecuador ( ibid. , § 668), France ( ibid. , § 669), Italy ( ibid. , Benin ( , § 666), Croatia ( ibid. , § 671), Togo ( § 670), Sweden ( , § 672), United States ( ibid. , § 673) and Yugoslavia ibid. ( ibid. , § 674). 58 See, e.g., the military manuals of France ( ibid. , § 669), Kenya ( ibid. , § 665), United Kingdom ( ibid. , § 665) and United States ( ibid. , § 665). 59 Amended Protocol II to the CCW, Article 2(7) ( , § 661). ibid. 60 Protocol III to the CCW, Article 1(4) ( ibid. , § 662). 61 See, e.g., the military manuals of Colombia, Kenya, Madagascar and South Africa ( ibid ., § 665), Benin ( ibid ., § 666), Croatia ( ibid. , § 667), Ecuador ( ibid. , § 668), Italy ( ibid. , § 670), Togo ( ibid. , § 672) and Yugoslavia ( ibid. , § 674).

95 34 civilian objects and military objectives No contrary practice was found with respect to either international or non- international armed conflicts in the sense that no other definition of civilian objects has officially been advanced. Some military manuals define civilian 62 objects as “objects that are not used for military purposes”. This definition is not incompatible with this rule but rather underlines the fact that civilian objects lose their protection against attack if they are used for military purposes and, because of such use, become military objectives (see Rule 10). Examples State practice considers civilian areas, towns, cities, villages, residential areas, 63 civilian means of transporta- dwellings, buildings and houses and schools, 64 65 tion, hospitals, medical establishments and medical units, historic monu- 66 67 ments, places of worship and cultural property, and the natural environment prima facie as civilian objects, provided, in the final analysis, they have not become military objectives (see Rule 10). Alleged attacks against such objects 68 have generally been condemned. Rule 10. Civilian objects are protected against attack, unless and for such time as they are military objectives. Practice Volume II, Chapter 2, Section D. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts Loss of protection of civilian objects must be read together with the basic rule that only military objectives may be attacked. It follows that when a civilian object is used in such a way that it loses its civilian character and qualifies as a military objective, it is liable to attack. This reasoning can also be found in the Statute of the International Criminal Court, which makes it a war crime 62 See the military manuals of Benin ( , § 666), Croatia ( ibid. , § 667), France ( ibid. , § 669), Italy ibid. ibid. ibid. ( , § 672). , § 670) and Togo ( 63 64 See the practice cited in , §§ 199–264. See the practice cited in ibid. , §§ 265–315. ibid. 65 66 See the practice cited in Vol. II, Ch. 7. See the practice cited in Vol. II, Ch. 12. 67 See the practice cited in Vol. II, Ch. 14. 68 See, e.g., the statements of Croatia (cited in Vol. II, Ch. 2, § 145), Egypt ( ibid. , § 146), EC and its member States, USSR and United States ( ibid. , § 147), Mozambique ( ibid. , § 152), Slovenia ( ibid. , § 155), United Arab Emirates ( ibid. , § 157) and United Kingdom ( ibid. , § 159).

96 Rule 10 35 to intentionally direct attacks against civilian objects, provided they “are not 69 military objectives”. Numerous military manuals contain the rule that civilian objects lose their protection against attack when and for such time as they are military objec- 70 tives. In this context, loss of protection of civilian objects is often referred to in terms of objects being “used for military purposes” or of objects being “used 71 for military action”. These expressions are not incompatible with this rule and, in any case, they are used by States that have accepted the definition of military objectives contained in Rule 8. Situations of doubt as to the character of an object The issue of how to classify an object in case of doubt is not entirely clear. Additional Protocol I formulates an answer by providing that “in case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be 72 so used”. No reservations have been made to this provision. Indeed, at the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 52 was so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the 73 aim and purpose of Protocol I and undermine its basis”. The principle of presumption of civilian character in case of doubt is also contained in Amended 74 Protocol II to the Convention on Certain Conventional Weapons. The presumption of civilian character of an object formulated in Additional 75 Protocol I is also contained in numerous military manuals. While the US 69 ICC Statute, Article 8(2)(b)(ii); see also Article 8(2)(b)(ix) and (e)(iv) (concerning attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monu- ments, hospitals and places where the sick and wounded are collected) and Article 8(2)(b)(v) (concerning attacks against towns, villages, dwellings or buildings which are undefended). 70 , § 688), See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 2, § 687), Belgium ( ibid. , § 689), Canada ( ibid. , § 690), Colombia ( Cameroon ( , § 691), Croatia ( ibid. , § 692), ibid. ibid. ibid. France ( ibid. , § 694), Italy ( ibid. , § 695), Kenya ( ibid. , § 696), Madagascar , § 693), Israel ( ( ibid. , § 697), Netherlands ( ibid. , §§ 698–700), New Zealand ( ibid. , § 701), Russia ( ibid. , § 702), Spain ( ibid. , § 703) and United States ( ibid. , §§ 704–705). 71 See, e.g., the practice of Australia ( , § 687), Canada ( ibid. , § 690), Netherlands ( ibid. , § 700), ibid. ibid. ibid. , §§ 705 and 710–711). Russia ( , § 702) and United States ( 72 Additional Protocol I, Article 52(3) (adopted by 79 votes in favour, none against and 7 abstentions) ( ibid. , § 719). 73 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols ( , § 751). ibid. 74 Amended Protocol II to the CCW, Article 3(8)(a) ( , § 720). ibid. 75 ibid. See, e.g., the military manuals of Argentina ( ibid. , § 726), Benin ( ibid. , , § 725), Australia ( § 727), Cameroon ( ibid. , § 728), Canada ( ibid. , § 729), Colombia ( ibid. , § 730), Croatia ( ibid. , § 731), France ( , § 732), Germany ( ibid. , § 733), Hungary ( ibid. , § 734), Israel ( ibid. , § 735), ibid. Kenya ( ibid. , § 736), Madagascar ( ibid. , § 737), Netherlands ( ibid. , § 738), New Zealand ( ibid. , § 739), Spain ( ibid. , § 741), Sweden ( ibid. , § 742), Togo ( ibid. , § 743) and United States ( ibid. , § 744).

97 36 civilian objects and military objectives 76 Air Force Pamphlet contains this rule, a report submitted to Congress by the US Department of Defence in 1992 states that the rule is not customary and is contrary to the traditional law of war because it shifts the burden of determining the precise use of an object from the defender to the attacker, i.e., from the party controlling that object to the party lacking such control. This imbalance would ignore the realities of war in demanding a degree of certainty of the attacker that seldom exists in combat. It would also encourage the defender to ignore its 77 obligations to separate civilians and civilian objects from military objectives. According to the Report on the Practice of Israel, Israel is of the view that this presumption only applies when the field commander considers that there is a “significant” doubt and not if there is merely a slight possibility of being mistaken. Accordingly, the decision whether or not to attack rests with the field commander who has to determine whether the possibility of mistake is 78 significant enough to warrant not launching the attack. In the light of the foregoing, it is clear that, in case of doubt, a careful assess- ment has to be made under the conditions and restraints governing a particular situation as to whether there are sufficient indications to warrant an attack. It cannot automatically be assumed that any object that appears dubious may be subject to lawful attack. This is also consistent with the requirement to take all feasible precautions in attack, in particular the obligation to verify that objects to be attacked are military objectives liable to attack and not civilian objects (see Rule 16). 76 United States, Air Force Pamphlet ( ibid. , § 744). 77 United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War ( ibid. , § 752). 78 Report on the Practice of Israel ( ibid. , § 749).

98 chapter 3 INDISCRIMINATE ATTACKS Rule 11. Indiscriminate attacks are prohibited. Practice Volume II, Chapter 3, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The prohibition of indiscriminate attacks is set forth in Article 51(4) of Addi- 1 tional Protocol I. At the Diplomatic Conference leading to the adoption of the Additional Protocols, France voted against Article 51 because it deemed that paragraph 4 by its “very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the inherent right of legitimate defence recognized in Article 51 of the Charter of the United 2 Nations”. Upon ratification of Additional Protocol I, however, France did not enter a reservation with respect to the prohibition of indiscriminate attacks. At the Diplomatic Conference leading to the adoption of the Additional Pro- tocols, Mexico stated that Article 51 was so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with 3 the aim and purpose of Protocol I and undermine its basis”. The prohibition of indiscriminate attacks is also contained in Protocol II and Amended Protocol 4 II to the Convention on Certain Conventional Weapons. 1 Additional Protocol I, Article 51(4) (adopted by 77 votes in favour, one against and 16 abstentions) (cited in Vol. II, Ch. 3, § 1). 2 France, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , § 73). 3 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional ibid. , § 228). Protocols ( 4 Protocol II to the CCW, Article 3(3) ( ibid. , § 4); Amended Protocol II to the CCW, Article 3(8) ( ibid. , § 4). 37

99 38 indiscriminate attacks A large number of military manuals specify that indiscriminate attacks are 5 prohibited. Numerous States have adopted legislation making it an offence to 6 carry out such attacks. The prohibition is supported by official statements and 7 reported practice. This practice includes that of States not, or not at the time, 8 party to Additional Protocol I. In their pleadings before the International Court of Justice in the Nuclear Nuclear Weapons (WHO) case and Weapons case , several States invoked the prohibition of indiscriminate attacks in their assessment of whether an attack 9 with nuclear weapons would violate international humanitarian law. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the prohibition of indiscriminate attacks, the States concerned (Egypt, Iraq, Israel 10 and Syria) replied favourably. Non-international armed conflicts The prohibition of indiscriminate attacks was included in the draft of Addi- tional Protocol II but was dropped at the last moment as part of a package 11 aimed at the adoption of a simplified text. As a result, Additional Protocol II does not contain this rule as such, even though it has been argued that it is 5 ibid. ibid. , §§ 12 and 14), , §§ 12–13), Australia ( See, e.g., the military manuals of Argentina ( , § 12), Benin ( ibid. , § 12), Cameroon ( ibid. , § 15), Canada ( ibid. Belgium ( ibid. , §§ 12 and 16), ibid. , § 17), France ( ibid. , § 12), Germany ( ibid. , § 18), India ( ibid. , § 19), Indonesia Ecuador ( ibid. , § 12), Israel ( ibid. , §§ 12 and 21), Italy ( ( , § 22), Kenya ( ibid. , § 12), Netherlands ( ibid. , ibid. §§ 12 and 23), New Zealand ( , §§ 12 and 24), Russia ( ibid. , § 26), South Africa ( ibid. ,§§12 ibid. ibid. , § 12), Sweden ( , § 12), Switzerland ( ibid. , § 29), Togo ( ibid. , § 12) and and 27), Spain ( ibid. , § 12). United Kingdom ( ibid. 6 , § 32), Australia ( ibid. , § 34), Belarus ( ibid. , § 35), See, e.g., the legislation of Armenia ( ibid. ibid. , § 36), Bosnia and Herzegovina ( ibid. Belgium ( ibid. , § 38), China ( ibid. , , § 37), Canada ( § 39), Colombia ( , § 40), Cook Islands ( ibid. , § 41), Croatia ( ibid. , § 42), Cyprus ( ibid. , § 43), ibid. ibid. , § 45), Georgia ( ibid. , § 46), Indonesia ( ibid. , § 47), Ireland ( ibid. , § 48), Lithuania Estonia ( ( ibid. , § 51), Netherlands ( ibid. , § 52), New Zealand ( ibid. , § 53), Niger ( ibid. , § 55), Norway ( ibid. ibid. , § 57), Spain ( ibid. , § 58), Sweden ( ibid. , § 59), Tajikistan ( ibid. , § 60), , § 56), Slovenia ( ibid. , § 61), Yugoslavia ( , § 62) and Zimbabwe ( ibid. , § 63); see also the United Kingdom ( ibid. ibid. ibid. , § 44), Jordan ( ibid. , § 49), Lebanon draft legislation of Argentina ( , § 32), El Salvador ( ibid. , § 50) and Nicaragua ( ibid. , § 54). ( 7 See, e.g., the statements of Bosnia and Herzegovina ( , § 66), Botswana ( ibid. , § 67), Finland ibid. ibid. ( , § 72), Monitoring Group on the Implementation of the 1996 Israel-Lebanon Ceasefire Understanding, consisting of France, Israel, Lebanon, Syria and United States ( ibid. , § 75), Ger- ibid. , § 76), Iran ( many ( , § 79), Iraq ( ibid. , §§ 80–81), Malaysia ( ibid. , § 83), Poland ( ibid. , ibid. § 89), Slovenia ( ibid. , § 91), South Africa ( ibid. , § 92), Sweden ( ibid. , § 93), Syria ( ibid. , § 94), United Kingdom ( ibid. ibid. , § 98) and Yugoslavia ( ibid. , § 100) and , §§ 95–97), United States ( ibid. the reported practice of Malaysia ( , § 84). 8 ibid. , § 39), France ( ibid. , § 74), India ( ibid. , § 19), Indonesia See, e.g., the practice of China ( , § 80), Israel ( ( ibid. , § 79), Iraq ( ibid. , § 12), Iran ( ibid. , §§ 12 and 21), Kenya ( ibid. , § 12), ibid. Malaysia ( ibid. , §§ 83–84), South Africa ( ibid. , § 92), United Kingdom ( ibid. , §§ 12 and 95–97) and United States ( ibid. , §§ 30 and 98). 9 See. e.g., the pleadings of Australia ( ibid. ibid. , § 77), Mexico ( ibid. , § 85), New , § 65), India ( Zealand ( ibid. , § 86) and United States ( ibid. , § 99). 10 See ICRC, The International Committee’s Action in the Middle East ( ibid. , § 139). 11 Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 26(3) ( ibid. , § 3).

100 Rule 11 39 included by inference within the prohibition against making the civilian pop- 12 ulation the object of attack contained in Article 13(2). This rule has been included in more recent treaty law applicable in non-international armed con- flicts, namely Amended Protocol II to the Convention on Certain Conventional 13 Weapons. In addition, the prohibition has been included in other instruments 14 pertaining also to non-international armed conflicts. Military manuals which are applicable in or have been applied in non- international armed conflicts specify the prohibition of indiscriminate 15 attacks. Numerous States have adopted legislation making it an offence to 16 carry out such attacks in any armed conflict. A number of official state- 17 ments pertaining to non-international armed conflicts refer to this rule. The pleadings before the International Court of Justice in the Nuclear Weapons case referred to above were couched in general terms applicable in all armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have gen- erally been condemned by States, irrespective of whether the conflict was 18 international or non-international. The United Nations and other interna- tional organisations have also condemned violations of this rule, for example, in the context of the conflicts in Afghanistan, Bosnia and Herzegovina, Burundi, 19 Chechnya, Kosovo, Nagorno-Karabakh and Sudan. 12 Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts , Martinus Nijhoff, The Hague, 1982, p. 677. 13 Amended Protocol II to the CCW, Article 3(8) (cited in Vol. II, Ch. 3, § 4). 14 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the ibid. SFRY, para. 6 ( , § 6); Agreement on the Application of IHL between the Parties to the ibid. , § 7); San Remo Manual, para. 42 ( , § 8); Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines, Part III, ibid. ibid. Article 2(4) ( , § 11). , § 10); UN Secretary-General’s Bulletin, Section 5.5 ( 15 See, e.g., the military manuals of Australia ( , §§ 12 and 14), Benin ( ibid. , § 12), Ecuador ibid. ibid. , § 17), Germany ( ibid. ( ibid. , §§ 19–20), Italy ( ibid. , § 22), Kenya ( ibid. , § 12), , § 18), India ( South Africa ( , §§ 12 and 27) and Togo ( ibid. , § 12). ibid. 16 See, e.g., the legislation of Armenia ( , § 33), Belarus ( ibid. , § 35), Belgium ( ibid. , § 36), Bosnia ibid. and Herzegovina ( ibid. , § 37), Colombia ( ibid. , § 40), Croatia ( ibid. , § 42), Estonia ( ibid. , § 45), Georgia ( ibid. ibid. , § 51), Niger ( ibid. , § 55), Norway ( ibid. , § 56), Slovenia , § 46), Lithuania ( ibid. ibid. , § 58), Sweden ( ibid. , § 59), Tajikistan ( ibid. , § 60) and Yugoslavia ( ibid. , ( , § 57), Spain ( ibid. , § 32), El Salvador ( ibid. , § 44), Jordan § 62); see also the draft legislation of Argentina ( ( ibid. ibid. , § 54). , § 49) and Nicaragua ( 17 ,§§83– , § 76), India ( See, e.g., the statements of Germany ( , §§ 77–78), Malaysia ( ibid. ibid. ibid. 84) and Slovenia ( ibid. , § 91). 18 See, e.g., the statements of Bosnia and Herzegovina ( ibid. , § 66), Botswana ( ibid. , § 67), Iran ( ibid. ibid. , §§ 80–81), Malaysia ( ibid. , § 83), Slovenia ( ibid. , § 91), South Africa , § 79), Iraq ( , § 98) and Yugoslavia ( ibid. ibid. , §§ 95–97), United States ( ibid. ( ibid. , , § 92), United Kingdom ( § 100). 19 See, e.g., UN Security Council, Res. 1199 ( ibid. , § 102) and Statement by the President ( ibid. , § 103); UN General Assembly, Res. 40/137 ( , § 106), Res. 48/153, 49/196 and 50/193 ( ibid. , ibid. § 107), Res. 51/112 ( ibid. , § 108), Res. 53/164 ( ibid. , § 109), Res. 55/116 ( ibid. , § 110); UN Commission on Human Rights, Res. 1987/58 and 1995/74 ( ibid. , § 111), Res. 1992/S-2/1 and 1993/7 ( ibid. , § 112), Res. 1994/75 and 1995/89 ( ibid. , § 113), Res. 1995/77, 1996/73, 1997/59 and

101 40 indiscriminate attacks The jurisprudence of the International Criminal Tribunal for the Former Yugoslavia provides further evidence of the customary nature of the prohi- bition of indiscriminate attacks in both international and non-international 20 armed conflicts. The 25th International Conference of the Red Cross in 1986 deplored “the indiscriminate attacks inflicted on civilian populations . . . in violation of the 21 laws and customs of war”. The ICRC has reminded parties to both inter- national and non-international armed conflicts of their duty to abstain from 22 indiscriminate attacks. Rule 12. Indiscriminate attacks are those: (a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. Practice Volume II, Chapter 3, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts This definition of indiscriminate attacks is set forth in Article 51(4)(a) of Addi- 23 France voted against Article 51 at the Diplomatic Confer- tional Protocol I. ence leading to the adoption of the Additional Protocols because it deemed ibid. , § 114), Res. 1998/82 ( ibid. 1998/67 ( ibid. , § 116); Council of Europe, , § 115), Res. 2000/58 ( Committee of Ministers, Declaration on Nagorno-Karabakh ( ibid. , § 125) and Declaration on Bosnia and Herzegovina ( ibid. , § 126); Council of Europe, Parliamentary Assembly, Res. 1055 ( ibid. , § 127); EC, Ministers of Foreign Affairs, Declaration on Yugoslavia ( ibid. , § 128); EC, Statement on the bombardment of Gora ibid. , § 129); EU, zde and Declaration on Yugoslavia ( ˇ ibid. , § 130); European Council, SN Council of Ministers, Council Regulation EC No. 1901/98 ( ibid. , § 131). 100/00, Presidency Conclusions ( 20 ˇ ́ ́ c case , Interlocutory Appeal ( ibid. , § 134) Kordi ICTY, c and Tadi Cerkez case , Decision on the ˇ ́ c case Joint Defence Motion ( ski Kupre , § 136) and , Judgement ( ibid. , § 137). ibid. 21 25th International Conference of the Red Cross, Res. I ( ibid. , § 133). 22 See, e.g., the practice of the ICRC ( ibid. , §§ 139–142, 144–154 and 156–157). 23 Additional Protocol I, Article 51(4)(a) (adopted by 77 votes in favour, one against and 16 absten- tions) ( ibid. , § 164).

102 Rule 12 41 that paragraph 4 by its “very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the inherent 24 right of legitimate defence”. Upon ratification of Additional Protocol I, how- ever, France did not enter a reservation to this provision. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 51 was so essential that it “cannot be the subject of any reserva- tions whatsoever since these would be inconsistent with the aim and purpose 25 of Protocol I and undermine its basis”. A report on the work of Committee III of the Diplomatic Conference stated that there was general agreement that a proper definition of indiscriminate attacks included the three types of attack 26 set down in this rule. With the exception of subparagraph (c), this definition of indiscriminate attacks is also contained in Protocol II and Amended Protocol 27 II to the Convention on Certain Conventional Weapons. A large number of military manuals contain this definition of indiscrimi- 28 nate attacks, in whole or in part. It has similarly been relied upon in offi- 29 cial statements. This practice includes that of States not party to Additional 30 Protocol I. Non-international armed conflicts Additional Protocol II does not contain a definition of indiscriminate attacks, even though it has been argued that subsections (a) and (b) of the definition contained in this rule are included by inference within the prohibition con- 31 tained in Article 13(2) on making the civilian population the object of attack. 24 France, Statement at the Diplomatic Conference leading to the adoption of the Additional Pro- tocols ( , § 73). ibid. 25 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional , §§ 228 and 268). Protocols ( ibid. 26 Report on the work of Committee III of the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , § 200). 27 Protocol II to the CCW, Article 3(3)(a) ( ibid. , § 165); Amended Protocol II to the CCW, Article ibid. 3(8)(a) ( , § 166). 28 ibid. ibid. , §§ 170, See, e.g., the military manuals of Australia ( , §§ 170, 212 and 256), Belgium ( ibid. 212 and 256), Benin ( ibid. , §§ 170, 212 and 256), Ecuador ( ibid. ,§§172 , § 171), Canada ( and 213), Germany ( ibid. , §§ 170, 212 and 256), Israel ( ibid. , §§ 173, 214 and 257), Kenya ( ibid. , § 174), Netherlands ( ibid. ibid. , §§ 170, 212 and 256), , §§ 170, 212 and 256), New Zealand ( ibid. ibid. , § 176), Spain ( ibid. , §§ 170, 212 and 256), Sweden Nigeria ( , § 175), South Africa ( ibid. , §§ 170, 212 and 256), Togo ( ibid. , § 177), United Kingdom ( ibid. , § 178), United States ( ibid. , §§ 179–180, 215–217 and 258) and Yugoslavia ( ibid. , § 259); see also the draft legislation ( ibid. , §§ 182, 219 and 261). ibid. of El Salvador ( , §§ 181, 218 and 260) and Nicaragua ( 29 ibid. , § 221), Colombia ( ibid. , § 184), Federal Republic of See, e.g., the statements of Canada ( Germany ( ibid. , § 222), German Democratic Republic ( ibid. , § 223), India ( ibid. , §§ 185 and 224), Iraq ( ibid. ibid. , § 226), Jordan and United States ( ibid. , §§ 186 and 227), Mexico , § 225), Italy ( ibid. ( ibid. , § 230), Rwanda ( ibid. , § 190), Sri Lanka ( ibid. , § 231), , §§ 188 and 228–229), Nauru ( United Kingdom ( ibid. , §§ 191 and 232) and United States ( ibid. , §§ 192–195 and 233–237). 30 ibid. , §§ 185, 224 and 265) and United States ( ibid. , §§ 186, 227 See, e.g., the practice of India ( and 267). 31 Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts , Martinus Nijhoff, The Hague, 1982, p. 677.

103 42 indiscriminate attacks With the exception of subsection (c), this definition has also been included in more recent treaty law applicable in non-international armed conflicts, namely 32 Amended Protocol II to the Convention on Certain Conventional Weapons. In addition, the definition is included in other instruments pertaining also to 33 non-international armed conflicts. This definition of indiscriminate attacks is also set forth in military man- uals which are applicable in or have been applied in non-international armed 34 35 conflicts. It is supported by official statements. The 24th International Conference of the Red Cross in 1981 urged parties to armed conflicts in general “not to use methods and means of warfare that cannot be directed against specific military targets and whose effects cannot be 36 limited”. Further evidence of the customary nature of the definition of indiscriminate attacks in both international and non-international armed conflicts can be found in the jurisprudence of the International Court of Justice and of the Inter- national Criminal Tribunal for the Former Yugoslavia. In its advisory opinion in the , the International Court of Justice stated that the Nuclear Weapons case prohibition of weapons that are incapable of distinguishing between civilian and military targets constitutes an “intransgressible” principle of customary international law. The Court observed that, in conformity with this principle, humanitarian law, at a very early stage, prohibited certain types of weapons 37 “because of their indiscriminate effect on combatants and civilians”. In its ́ review of the indictment in the in 1996, the International Criminal Marti c case Tribunal for the Former Yugoslavia examined the legality of the use of cluster bombs according to customary international law, including the prohibition of indiscriminate attacks involving a means or method of warfare which cannot 38 be directed at a specific military objective. No official contrary practice was found. No other definition of indiscriminate attacks has officially been advanced, and the statements made with respect to indiscriminate attacks in general under Rule 11 may be based in some or more instances on an understanding of indiscriminate attacks as contained in Rule 12, especially since no other definition exists. 32 Amended Protocol II to the CCW, Article 3(8)(a) (cited in Vol. II, Ch. 3, § 166). 33 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , §§ 167, 209 and 253); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , §§ 168, 210 and 254); San Remo Manual, para. 42(b) ( ibid. , §§ 169, 211 and 255). 34 See, e.g., the military manuals of Australia ( , §§ 170, 212 and 256), Benin ( ibid. , § 171), ibid. ibid. , §§ 172 and 213), Germany ( ibid. , §§ 170, 212 and 256), Kenya ( Ecuador ( , § 174), ibid. Nigeria ( ibid. , § 175), Togo ( ibid. , § 177) and Yugoslavia ( ibid. , § 259). 35 See, e.g., the statements of India ( ibid. , §§ 185, 224 and 265), Jordan ( ibid. , §§ 186, 227 and 267) and United States ( ibid. , §§ 186, 195, 227, 236 and 267); see also the draft legislation of El ibid. , §§ 181, 218 and 260) and Nicaragua ( ibid. Salvador ( , §§ 182, 219 and 261). 36 24th International Conference of the Red Cross, Res. XIII ( ibid. , §§ 242 and 279). 37 ICJ, Nuclear Weapons case ( ibid. , § 243). 38 ́ ICTY, Marti c case , Review of the Indictment ( ibid. , § 246).

104 Rule 13 43 Interpretation This definition of indiscriminate attacks represents an implementation of the principle of distinction and of international humanitarian law in general. Rule 12(a) is an application of the prohibition on directing attacks against civil- ians (see Rule 1) and the prohibition on directing attacks against civilian objects (see Rule 7), which are applicable in both international and non-international armed conflicts. Rule 12(b) is also an application of the prohibition on directing attacks against civilians or against civilian objects (see Rules 1 and 7). The pro- hibition of weapons which are by nature indiscriminate (see Rule 71), which is applicable in both international and non-international armed conflicts, is based on the definition of indiscriminate attacks contained in Rule 12(b). Lastly, Rule 12(c) is based on the logical argument that means or methods of warfare whose effects cannot be limited as required by international humanitarian law should be prohibited. But this reasoning begs the question as to what those limitations are. Practice in this respect points to weapons whose effects are uncontrol- lable in time and space and are likely to strike military objectives and civilians or civilian objects without distinction. The US Air Force Pamphlet gives the 39 example of biological weapons. Even though biological weapons might be directed against military objectives, their very nature means that after being launched their effects escape from the control of the launcher and may strike both combatants and civilians and necessarily create a risk of excessive civilian casualties. Rule 13. Attacks by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects are prohibited. Practice Volume II, Chapter 3, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts According to Additional Protocol I, an attack by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or 39 United States, Air Force Pamphlet ( ibid. , § 258).

105 44 indiscriminate attacks other area containing a similar concentration of civilians or civilian objects, 40 so-called “area bombardments”, are indiscriminate and, as such, prohibited. The prohibition of “area bombardment” is contained in numerous military 41 manuals. These include manuals of States not, or not at the time, party to 42 Additional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the prohibition of “area bombardment”, the States concerned (Egypt, Iraq, Israel 43 and Syria) replied favourably. Non-international armed conflicts The prohibition of “area bombardment” was included in the draft of Additional Protocol II but was dropped at the last moment as part of a package aimed at 44 the adoption of a simplified text. As a result, Additional Protocol II does not contain this rule as such, even though it has been argued that it is included by inference within the prohibition contained in Article 13(2) on making the civil- 45 ian population the object of attack. The prohibition is set forth in more recent treaty law applicable in non-international armed conflicts, namely Amended 46 Protocol II to the Convention on Certain Conventional Weapons. In addition, it has been included in other instruments pertaining also to non-international 47 armed conflicts. Military manuals which are applicable in or have been applied in non- 48 international armed conflicts specify the prohibition of “area bombardment”. The conclusion that this rule is customary in non-international armed con- flicts is also supported by the argument that because so-called “area bombard- ments” have been considered to constitute a type of indiscriminate attack, 40 Additional Protocol I, Article 51(5)(a) (adopted by 77 votes in favour, one against and 16 absten- ibid. , § 283). tions) ( 41 ibid. , §§ 290–291), Belgium ( ibid. , § 292), Benin See, e.g., the military manuals of Australia ( ibid. , § 293), Canada ( ibid. ( ibid. , § 295), Germany ( ibid. , § 296), Israel ( ibid. , , § 294), Croatia ( § 297), Italy ( ibid. , § 298), Kenya ( ibid. , § 299), Madagascar ( ibid. , § 300), Netherlands ( ibid. , § 301), New Zealand ( ibid. , § 302), Spain ( ibid. , § 303), Sweden ( ibid. , § 304), Switzerland ( ibid. , § 305), Togo ( ibid. ibid. , § 307) and United States ( ibid. , § 308). , § 306), United Kingdom ( 42 See the military manuals of Israel ( , § 297), Kenya ( ibid. , § 299), United Kingdom ( ibid. , ibid. ibid. , § 308). § 307) and United States ( 43 See ICRC, The International Committee’s Action in the Middle East ( , § 321). ibid. 44 Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 26(3)(a) ( , § 284). ibid. 45 Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts , Martinus Nijhoff, The Hague, 1982, p. 677. 46 Amended Protocol II to the CCW, Article 3(9) (cited in Vol. II, Ch. 3, § 285). 47 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , § 288); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 289). 48 See, e.g., the military manuals of Australia ( ibid. , § 290), Benin ( ibid. , § 293), Croatia ( ibid. , , § 299), Madagascar ( § 295), Germany ( , § 296), Italy ( ibid. , § 298), Kenya ( ibid. ibid. ibid. , § 300) and Togo ( ibid. , § 306).

106 Rule 13 45 and because indiscriminate attacks are prohibited in non-international armed conflict, it must follow that “area bombardments” are prohibited in non- international armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. Interpretation At the Diplomatic Conference leading to the adoption of the Additional Pro- tocols, the United States specified that the words “clearly separated” in the definition of area bombardments required a distance “at least sufficiently large 49 to permit the individual military objectives to be attacked separately”. This 50 view was supported by some other States. 49 United States, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , § 315). 50 See the statements at the Diplomatic Conference leading to the adoption of the Additional Protocols made by Canada ( ibid. , § 311), Egypt ( ibid. , § 312) and United Arab Emirates ( ibid. , § 314).

107 chapter 4 PROPORTIONALITY IN ATTACK Rule 14. Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. Practice Volume II, Chapter 4. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The principle of proportionality in attack is codified in Article 51(5)(b) of Addi- 1 At the Diplomatic Conference tional Protocol I, and repeated in Article 57. leading to the adoption of the Additional Protocols, France voted against Arti- cle 51 because it deemed that paragraph 5 by its “very complexity would seri- ously hamper the conduct of defensive military operations against an invader 2 and prejudice the inherent right of legitimate defence”. Upon ratification of Additional Protocol I, however, France did not enter a reservation to this provi- sion. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 51 was so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent 3 with the aim and purpose of Protocol I and undermine its basis”. Also at the Diplomatic Conference, several States expressed the view that the principle of proportionality contained a danger for the protection of the civilian population 1 Additional Protocol I, Article 51(5)(b) (adopted by 77 votes in favour, one against and 16 absten- tions) (cited in Vol. II, Ch. 4, § 1) and Article 57(2)(a)(iii) (adopted by 90 votes in favour, none against and 4 abstentions) (cited in Vol. II, Ch. 5, § 325). 2 France, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (cited in Vol. II, Ch. 4, § 89). 3 Mexico, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols (cited in Vol. II, Ch. 1, § 307). 46

108 Rule 14 47 but did not indicate an alternative solution to deal with the issue of inciden- 4 tal damage from attacks on lawful targets. The United Kingdom stated that Article 51(5)(b) was “a useful codification of a concept that was rapidly becom- ing accepted by all States as an important principle of international law relating 5 to armed conflict”. The principle of proportionality in attack is also contained in Protocol II and 6 Amended Protocol II to the Convention on Certain Conventional Weapons. In addition, under the Statute of the International Criminal Court, “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects . . . which would be clearly excessive in relation to the concrete and direct overall military advan- 7 tage anticipated” constitutes a war crime in international armed conflicts. A large number of military manuals lay down the principle of proportional- 8 ity in attack. Sweden’s IHL Manual, in particular, identifies the principle of proportionality as set out in Article 51(5) of Additional Protocol I as a rule of cus- 9 tomary international law. Numerous States have adopted legislation making it an offence to carry out an attack which violates the principle of proportion- 11 10 ality. This practice includes This rule is supported by official statements. 12 that of States not, or not at the time, party to Additional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, 4 See the statements at the Diplomatic Conference leading to the adoption of the Additional Protocols made by the German Democratic Republic (cited in Vol. II, Ch. 4, § 90), Hungary , § 93), Poland ( ibid. , § 105), Romania ( ibid. ( ibid. , § 112). ibid. , § 106) and Syria ( 5 United Kingdom, Statement at the Diplomatic Conference leading to the adoption of the Addi- tional Protocols ( ibid. , § 114). 6 ibid. Protocol II to the CCW, Article 3(3) ( , § 4); Amended Protocol II to the CCW, Article 3(8) ( , § 4). ibid. 7 ICC Statute, Article 8(2)(b)(iv) ( ibid. , § 5); see also UNTAET Regulation 2000/15, Section , § 13). ibid. 6(1)(b)(iv) ( 8 , § 14), Belgium ( ibid. , § 15), Benin ( ibid. , See, e.g., the military manuals of Australia ( ibid. , § 17), Canada ( ibid. , §§ 18–19), Colombia ( ibid. , § 20), Croatia ( ibid. , § 16), Cameroon ( ibid. ibid. § 21), Ecuador ( ibid. , §§ 23–24), Germany ( ibid. , §§ 25–26), Hungary ( ibid. , , § 22), France ( § 27), Indonesia ( , § 28), Israel ( ibid. , §§ 29–30), Kenya ( ibid. , § 31), Madagascar ( ibid. , § 32), ibid. ibid. , § 33), New Zealand ( ibid. , § 34), Nigeria ( ibid. , §§ 35–36), Philippines ( ibid. , Netherlands ( § 37), South Africa ( ibid. , § 38), Spain ( ibid. , § 39), Sweden ( ibid. , § 40), Switzerland ( ibid. , § 41), Togo ( ibid. ibid. , § 43) and United States ( ibid. , §§ 44–48). , § 42), United Kingdom ( 9 Sweden, ibid. , § 40). IHL Manual ( 10 ibid. See, e.g., the legislation of Armenia ( ibid. , §§ 51–52), Belarus ( ibid. , § 53), , § 50), Australia ( ibid. , § 54), Canada ( ibid. , §§ 57–58), Colombia ( ibid. , § 59), Congo ( Belgium ( , § 60), Cook ibid. Islands ( , § 61), Cyprus ( ibid. , § 62), Georgia ( ibid. , § 64), Germany ( ibid. , § 65), Ireland ibid. ibid. , § 66), Mali ( ibid. , § 68), Netherlands ( ibid. , § 69), New Zealand ( ibid. , §§ 70–71), Niger ( ( ibid. , § 73), Norway ( ibid. , § 74), Spain ( ibid. , § 75), Sweden ( ibid. , § 76), United Kingdom ( ibid. , §§ 78–79) and Zimbabwe ( ibid. ibid. , § 49), , § 80); see also the draft legislation of Argentina ( ibid. ibid. ibid. , § 63), Lebanon ( ibid. , § 67), Nicaragua ( Burundi ( , § 72) and , § 56), El Salvador ( Trinidad and Tobago ( , § 77). ibid. 11 See, e.g., the statements of Australia ( ibid. , § 82), Germany ( ibid. , § 92), Jordan and the United States ( ibid. , § 97), United Kingdom ( ibid. , §§ 114–117), United States ( ibid. , §§ 119–125) and Zimbabwe ( , § 129) and the reported practice of the United States ( ibid. , § 127). ibid. 12 See, e.g., the practice of Indonesia ( ibid. , § 28), Iraq ( ibid. , § 96), Israel ( ibid. , §§ 29–30), Kenya , §§ 114–117) and United States ( , § 31), Philippines ( ibid. , § 37), United Kingdom ( ibid. ibid. ( ibid. , §§ 44–48, 97 and 119–125) and the reported practice of the United States ( ibid. , § 127).

109 48 proportionality in attack i.e., before the adoption of Additional Protocol I, to respect the principle of pro- portionality in attack, the States concerned (Egypt, Iraq, Israel and Syria) replied 13 favourably. In their submissions to the International Court of Justice in the Nuclear , numerous States, including and Weapons case Nuclear Weapons (WHO) case States not, or not at the time, party to Additional Protocol I, invoked the prin- ciple of proportionality in their assessments of whether an attack with nuclear 14 weapons would violate international humanitarian law. In its advisory opin- ion, the Court acknowledged the applicability of the principle of proportional- ity, stating that “respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity 15 and proportionality”. Non-international armed conflicts While Additional Protocol II does not contain an explicit reference to the prin- ciple of proportionality in attack, it has been argued that it is inherent in the principle of humanity which was explicitly made applicable to the Pro- tocol in its preamble and that, as a result, the principle of proportionality can- 16 not be ignored in the application of the Protocol. The principle has been included in more recent treaty law applicable in non-international armed con- flicts, namely Amended Protocol II to the Convention on Certain Conventional 17 Weapons. In addition, it is included in other instruments pertaining also to 18 non-international armed conflicts. Military manuals which are applicable in or have been applied in non- international armed conflicts specify the principle of proportionality in 19 attack. Many States have adopted legislation making it an offence to violate 20 the principle of proportionality in attack in any armed conflict. Military In the Junta case in 1985, the National Appeals Court of Argentina considered the 13 ibid. , § 148). See ICRC, Memorandum on the Applicability of International Humanitarian Law ( 14 See the statements of Egypt ( , § 87), India ( ibid. , § 94), Iran ( ibid. , § 95), Malaysia ( ibid. , ibid. § 100), Netherlands ( ibid. , § 101), New Zealand ( ibid. , § 102), Solomon Islands ( ibid. , § 109), Sweden ( ibid. , § 111), United Kingdom ( ibid. , § 118), United States ( ibid. , § 126) and Zimbabwe ( ibid. , § 129). 15 ICJ, ibid. , § 140). Nuclear Weapons case ( 16 New Rules for Victims of Armed Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), , Martinus Nijhoff, The Hague, 1982, p. 678. Conflicts 17 Amended Protocol II to the CCW, Article 3(8)(c) (cited in Vol. II, Ch. 4, § 4). 18 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the ibid. , § 8); Agreement on the Application of IHL between the Parties to the SFRY, para. 6 ( ibid. Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , , § 9); San Remo Manual, para. 46(d) ( ibid. § 10); UN Secretary-General’s Bulletin, Section 5.5 ( , § 12). 19 ibid. See, e.g., the military manuals of Benin ( ibid. , § 19), Colombia ( ibid. , , § 16), Canada ( § 20), Croatia ( ibid. , § 21), Ecuador ( ibid. , § 22), Germany ( ibid. , §§ 25–26), Kenya ( ibid. , § 31), ibid. Madagascar ( ibid. , § 35), Philippines ( ibid. , § 37), South Africa ( , § 32), Nigeria ( , § 38) ibid. and Togo ( ibid. , § 42). 20 See, e.g., the legislation of Armenia ( ibid. , § 50), Belarus ( ibid. , § 53), Belgium ( ibid. , § 54), Colombia ( ibid. , § 59), Germany ( ibid. , § 65), Niger ( ibid. , § 73), Spain ( ibid. , § 75) and Sweden

110 Rule 14 49 principle of proportionality in attack to be part of customary international 21 law. There are also a number of official statements pertaining to armed con- flicts in general or to non-international armed conflicts in particular that refer 22 to this rule. The pleadings of States before the International Court of Justice referred to above were couched in general terms in the Nuclear Weapons case applicable in all armed conflicts. The jurisprudence of the International Criminal Tribunal for the For- mer Yugoslavia and a report of the Inter-American Commission on Human Rights provide further evidence of the customary nature of this rule in non- 23 international armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of the principle of pro- 24 portionality in attack have generally been condemned by States. The United Nations and other international organisations have also condemned such vio- lations, for example, in the context of the conflicts in Chechnya, Kosovo, the 25 Middle East and the former Yugoslavia. The ICRC has reminded parties to both international and non-international armed conflicts of their duty to respect the principle of proportionality in 26 attack. Interpretation Several States have stated that the expression “military advantage” refers to the advantage anticipated from the military attack considered as a whole and not 27 only from isolated or particular parts of that attack. The relevant provision in the Statute of the International Criminal Court refers to the civilian injuries, loss of life or damage being excessive “in relation to the concrete and direct ibid. , § 76); see also the draft legislation of Argentina ( , § 49), Burundi ( ibid. , § 56), El ( ibid. , § 63) and Nicaragua ( ibid. , § 72). Salvador ( ibid. 21 Military Junta case ( ibid. Argentina, National Appeals Court, , § 81). 22 ibid. , § 108), Spain ibid. , § 103), Rwanda ( ibid. See, e.g., the statements of Jordan ( , § 97), Nigeria ( ibid. , § 110) and United States ( ibid. , § 97). ( 23 ́ ˇ ́ c case , Review of the Indictment ( , § 139) and Kupre Marti ski ICTY, c case , Judgement ibid. ibid. ( , § 140); Inter-American Commission on Human Rights, Third report on human rights in Colombia ( ibid. , § 138). 24 ibid. , § 106) and Spain ( ibid. , § 108) and the reported practice See, e.g., the statements of Rwanda ( ibid. , § 97) and Nigeria ( ibid. , § 101). of Kuwait ( 25 See, e.g., UN Security Council, Res. 1160 and 1199 ( ibid. ibid. , § 133); UN , § 132) and Res. 1322 ( Commission on Human Rights, Res. 2000/58 ( ibid. , § 134); EC, Ministers of Foreign Affairs, Declaration on Yugoslavia ( ibid. , § 137). 26 See, e.g., the practice of the ICRC ( , §§ 146 and 148–152). ibid. 27 See the practice of Australia ( , §§ 161 and 167), Belgium ( ibid. , §§ 162, 168 and 177), Canada ibid. ( , §§ 162, 169 and 178), France ( ibid. , §§ 162 and 165), Germany ( ibid. , §§ 162, 170 and 179), ibid. Italy ( ibid. , §§ 162 and 180), Netherlands ( ibid. , §§ 162 and 181), New Zealand ( ibid. ,§§161 and 171), Nigeria ( ibid. , § 172), Spain ( ibid. , §§ 162 and 173), United Kingdom ( ibid. , §§ 162 and 182) and United States ( ibid. , §§ 174 and 183).

111 50 proportionality in attack 28 military advantage anticipated” (emphasis added). overall The ICRC stated at the Rome Conference on the Statute of the International Criminal Court that the addition of the word “overall” to the definition of the crime could not 29 be interpreted as changing existing law. Australia, Canada and New Zealand have stated that the term “military advantage” includes the security of the 30 attacking forces. Upon ratification of Additional Protocol I, Australia and New Zealand stated that they interpreted the term “concrete and direct military advantage antici- expectation that the attack would pated” as meaning that there is a bona fide make a relevant and proportional contribution to the objective of the military 31 attack involved. According to the Commentary on the Additional Protocols, the expression “concrete and direct” military advantage was used in order to indicate that the advantage must be “substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in 32 the long term should be disregarded”. Numerous States have pointed out that those responsible for planning, decid- ing upon or executing attacks necessarily have to reach their decisions on the basis of their assessment of the information from all sources which is available 33 to them at the relevant time. These statements were generally made with reference to Articles 51–58 of Additional Protocol I, without excluding their application to the customary rule. 28 ICC Statute, Article 8(2)(b)(iv) ( , § 5). ibid. 29 ICRC, Paper submitted to the Working Group on Elements of Crimes of the Preparatory Commission for the International Criminal Court ( ibid. , § 190). 30 See the practice of Australia ( ibid. , §§ 161 and 167), Canada ( ibid. , § 169) and New Zealand ( ibid. , § 161). 31 Australia, Declarations made upon ratification of Additional Protocol I ( , § 161); New ibid. Zealand, Declarations made upon ratification of Additional Protocol I ( ibid. , § 161). 32 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 2209. 33 See the practice of Algeria (cited in Vol. II, Ch. 4, § 193), Australia ( ibid. , §§ 194 and 207), Austria ( ibid. , § 195), Belgium ( ibid. , §§ 196, 208 and 214), Canada ( ibid. , §§ 197, 209 and 215), Ecuador ( , § 210), Egypt ( ibid. , § 198), Germany ( ibid. , §§ 199 and 216), Ireland ( ibid. , § 200), Italy ibid. ( ibid. , § 201), Netherlands ( ibid. , §§ 202 and 217), New Zealand ( ibid. , § 203), Spain ( ibid. , § 204), United Kingdom ( ibid. , §§ 205 and 218) and United States ( ibid. , §§ 211 and 219).

112 chapter 5 PRECAUTIONS IN ATTACK Rule 15. In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects. Practice Volume II, Chapter 5, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The two components of this rule are interrelated and the practice pertaining to each reinforces the validity of the other. This is a basic rule to which more content is given by the specific obligations contained in Rules 16–21. The practice collected in terms of those specific obligations is also relevant to prove the existence of this rule and vice versa . International armed conflicts The principle of precautions in attack was first set out in Article 2(3) of the 1907 Hague Convention (IX), which provides that if for military reasons immediate action against naval or military objectives located within an undefended town or port is necessary, and no delay can be allowed the enemy, the commander of a naval force “shall take all due measures in order that the town may suffer 1 as little harm as possible”. It is now more clearly codified in Article 57(1) of 2 Additional Protocol I, to which no reservations have been made. The obligation to take constant care and/or to take precautions to avoid or minimise incidental civilian losses is contained in numerous military 1 1907 Hague Convention (IX), Article 2(3) (cited in Vol. II, Ch. 5, § 63). 2 Additional Protocol I, Article 57(1) (adopted by 90 votes in favour, none against and 4 abstentions) ( ibid. , § 1). 51

113 52 precautions in attack 3 4 manuals. It is also supported by official statements and reported practice. This practice includes that of States not, or not at the time, party to Addi- 5 tional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the obligation to take precautions in attack, the States concerned 6 (Egypt, Iraq, Israel and Syria) replied favourably. Non-international armed conflicts The requirement to take precautions in attack was included in the draft of Addi- tional Protocol II but was dropped at the last moment as part of a package aimed 7 at the adoption of a simplified text. As a result, Additional Protocol II does not explicitly require such precautions. Article 13(1), however, requires that “the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations”, and it would be diffi- 8 cult to comply with this requirement without taking precautions in attack. More recent treaty law applicable in non-international armed conflicts, namely Amended Protocol II to the Convention on Certain Conventional Weapons and the Second Protocol to the Hague Convention for the Protection of Cultural 9 Property, does spell out the requirement of precautions in attack. In addi- tion, this requirement is contained in other instruments pertaining also to 10 non-international armed conflicts. 3 , §§ 6 and 71), Belgium ( ibid. , §§ 7 and 72), See, e.g., the military manuals of Australia ( ibid. ibid. , §§ 8 and 73), Cameroon ( ibid. , § 9), Canada ( ibid. Benin ( ibid. , , §§ 10 and 74), Croatia ( §§ 11 and 75–76), Ecuador ( , §§ 12 and 77), France ( ibid. , §§ 13 and 78), Germany ( ibid. , ibid. ibid. ibid. , § 16), Italy ( ibid. , §§ 17 and 81), Kenya §§ 14 and 79), Hungary ( , §§ 15 and 80), Israel ( ibid. , § 82), Madagascar ( ibid. , §§ 18 and 83), Netherlands ( ibid. , §§ 19–20 and 84), New Zealand ( ibid. ibid. ( , §§ 22–23 and 86), Philippines ( ibid. , § 87), Romania ( ibid. , , §§ 21 and 85), Nigeria ( § 24), Spain ( , §§ 25 and 88), Sweden ( ibid. , § 26), Switzerland ( ibid. , § 89), Togo ( ibid. ,§§27 ibid. and 90), United Kingdom ( ibid. , § 91) and United States ( ibid. , §§ 28–29 and 92–94). 4 See, e.g., the statements of Costa Rica ( , § 99), Israel ( ibid. , § 101), Liberia ( ibid. , § 36), ibid. ibid. , §§ 38 and 105), Saudi Arabia ( , § 106), South Africa ( ibid. , § 39), United Netherlands ( ibid. , §§ 41 and 108–111) and United States ( ibid. , §§ 42 and 112–124) and the reported Kingdom ( ibid. ibid. , §§ 35 and 100), Israel ( ibid. , § 102), Jordan ( ibid. practice of Indonesia ( , § 103), Malaysia ( , §§ 37 and 104), Syria ( ibid. , §§ 40 and 107), United States ( ibid. , § 125) and Zimbabwe ibid. ( , § 126). ibid. 5 See, e.g., the practice and reported practice of Indonesia ( ibid. , §§ 35 and 100), Israel ( ibid. ,§§16 and 101–102), Kenya ( ibid. , § 82), Malaysia ( ibid. , §§ 37 and 104), Philippines ( ibid. , § 87), South Africa ( ibid. ibid. , §§ 41, 91 and 108–111) and United States ( ibid. , , § 39), United Kingdom ( §§ 28–29, 42, 92–94 and 112–125). 6 ibid. , § 51). See ICRC, The International Committee’s Action in the Middle East ( 7 Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 24(2) ( ibid. , § 3). 8 Additional Protocol II, Article 13(1) (adopted by consensus) ( ibid. , § 2). 9 Amended Protocol II to the CCW, Article 3(10) (cited in Vol. II, Ch. 28, § 4); Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 7 (cited in Vol. II, Ch. 5, § 208). 10 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , §§ 4 and 67); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , §§ 5 and 68); CSCE Code of Conduct, para. 36 ( ibid. , § 69); UN Secretary-General’s Bulletin, Section 5.3 ( ibid. , § 70).

114 Rule 15 53 The obligation to take constant care and/or to take precautions to avoid or minimise incidental civilian losses is contained in military manuals which 11 are applicable in or have been applied in non-international armed conflicts. There are a number of official statements pertaining to armed conflicts in general or to non-international armed conflicts in particular that refer to this 12 requirement. In 1965, the 20th International Conference of the Red Cross adopted a reso- lution calling on governments and other authorities responsible for action in 13 all armed conflicts to spare the civilian population as much as possible. This was subsequently reaffirmed by the UN General Assembly in a resolution on 14 respect for human rights in armed conflict adopted in 1968. Furthermore, in a resolution adopted in 1970 on basic principles for the protection of civilian populations in armed conflicts, the General Assembly required that “in the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be 15 taken to avoid injury, loss or damage to civilian populations”. The jurisprudence of the International Criminal Tribunal for the Former ˇ ́ Kupre ski c case and the Inter-American Commission on Yugoslavia in the Human Rights in the case concerning the events at La Tablada in Argentina pro- vides further evidence of the customary nature of this rule in both international 16 ˇ ́ and non-international armed conflicts. ski In the c case , the Tribunal Kupre found the requirement to take precautions in attack to be customary because it 17 specified and fleshed out general pre-existing norms. It can be argued indeed that the principle of distinction, which is customary in international and non- international armed conflicts, inherently requires respect for this rule. The Tribunal also relied on the fact that the rule had not been contested by any 18 State. This study found no official contrary practice either. The ICRC has appealed to parties to both international and non-international 19 armed conflicts to respect the requirement to take precautions in attack. 11 See, e.g., the military manuals of Benin ( , §§ 8 and 73), Croatia ( ibid. , §§ 11 and 75), Ecuador ibid. ( ibid. , §§ 12 and 77), Germany ( ibid. , §§ 14 and 79), Italy ( ibid. , §§ 17 and 81), Madagascar ( ibid. , §§ 18 and 83), Nigeria ( ibid. , §§ 22–23 and 86) and Togo ( ibid. , §§ 27 and 90). 12 See, e.g., the statements of Bosnia and Herzegovina, Republika Srpska ( ibid. , § 34), Colombia , § 41) and United , § 98), Liberia ( , § 36), Malaysia ( ibid. ibid. ibid. ibid. ( , § 104), United Kingdom ( ibid. , § 42). States ( 13 ibid. , § 48). 20th International Conference of the Red Cross, Res. XXVIII ( 14 UN General Assembly, Res. 2444 (XXIII) (adopted by unanimous vote of 111 votes in favour to ibid. , § 45). none against) ( 15 UN General Assembly, Res. 2675 (XXV) (adopted by 109 votes in favour, none against and 8 ibid. , § 46). abstentions) ( 16 ˇ ́ ski ICTY, Kupre c case , Judgement ( ibid. , §§ 49 and 132); Inter-American Commission on Human Rights, ( ibid. , § 133). Case 11.137 (Argentina) 17 ˇ ́ , §§ 49 and 132). ski ICTY, c case , Judgement ( ibid. Kupre 18 ˇ ́ , Judgement ( ski Kupre c case ICTY, ibid. , §§ 49 and 132). 19 See, e.g., the practice of the ICRC ( ibid. , §§ 51, 53–61 and 135–142).

115 54 precautions in attack Feasibility of precautions in attack The obligation to take all “feasible” precautions has been interpreted by many States as being limited to those precautions which are practicable or practically possible, taking into account all circumstances ruling at the time, including 20 humanitarian and military considerations. Protocols II and III and Amended Protocol II to the Convention on Certain Conventional Weapons define feasible 21 precautions in the same terms. Upon ratification of Additional Protocol I, Switzerland stated that the obliga- tion imposed by Article 57(2) on “those who plan or decide upon an attack” to take the specific precautionary measures set out in the article creates obli- gations only for “commanding officers at the battalion or group level and 22 above”. It previously expressed its concern at the Diplomatic Conference leading to the adoption of the Additional Protocols that the wording in the cha- peau of Article 57(2) was ambiguous and “might well place a burden of responsi- bility on junior military personnel which ought normally to be borne by those 23 of higher rank”. Also at the Diplomatic Conference, Austria expressed the same concern that “junior military personnel could not be expected to take all the precautions prescribed, particularly that of ensuring respect for the prin- 24 ciple of proportionality during an attack”. Upon ratification of Additional Protocol I, the United Kingdom made a similar point with respect to the obli- gation to cancel or suspend an attack if it becomes clear that the target is not a military objective or that its attack is likely to cause excessive civilian damage (see Rule 19) to the effect that this obligation only applied to “those who have 25 the authority and practical possibility to cancel or suspend the attack”. Information required for deciding upon precautions in attack Numerous States have expressed the view that military commanders and others responsible for planning, deciding upon or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all 20 See the practice of Algeria ( ibid. , § 147), Argentina ( ibid. , § 160), Australia ( ibid. , § 161), Belgium ( ibid. , § 148), Canada ( ibid. , §§ 149, 162 and 168), France ( ibid. , §150), Germany ( ibid. , §§ 151 and 169), India ( ibid. ibid. , § 152), Italy ( ibid. , §§ 153 and 171), Netherlands ( ibid. , , § 170), Ireland ( ibid. , § 164), Spain ( ibid. , § 155), Turkey ( ibid. , § 174), §§ 154, 163 and 172), New Zealand ( ibid. , § 157) and United States ( ibid. , § 175). United Kingdom ( 21 Protocol II to the CCW, Article 3(4) (cited in Vol. II, Ch. 28, § 4); Protocol III to the CCW, Article 1(5) (cited in Vol. II, Ch. 30, § 109); Amended Protocol II to the CCW, Article 3(10) (cited in Vol. II, Ch. 28, § 4). 22 Switzerland, Declaration made upon signature and reservation made upon ratification of Addi- tional Protocol I (cited in Vol. II, Ch. 5, § 156). 23 Switzerland, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , § 173). 24 Austria, Statement at the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , § 167). 25 United Kingdom, Reservations and declarations made upon ratification of Additional Protocol I( ibid. , § 158).

116 Rule 16 55 26 At the same time, sources which is available to them at the relevant time. many military manuals stress that the commander must obtain the best pos- sible intelligence, including information on concentrations of civilian persons, important civilian objects, specifically protected objects, the natural environ- 27 ment and the civilian environment of military objectives. Rule 16. Each party to the conflict must do everything feasible to verify that targets are military objectives. Practice Volume II, Chapter 5, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The obligation to do everything feasible to verify that targets are military objec- tives is set forth in Article 57(2)(a) of Additional Protocol I, to which no reser- 28 vations relevant to this rule have been made. 29 This obligation is included in numerous military manuals. It is supported 30 by official statements and reported practice. This practice includes that of 31 States not, or not at the time, party to Additional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, 26 See Ch. 4, footnote 33. 27 See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 5, § 185), Benin ( ibid. , § 186), ibid. , § 188), France ( Croatia ( , § 190), Italy ( ibid. , § 191), Madagascar ( ibid. , § 192), Nigeria ibid. ( , § 194), Spain ( ibid. , § 195), Sweden ( ibid. , § 196) and Togo ( ibid. , § 197). ibid. 28 Additional Protocol I, Article 57(2)(a) (adopted by 90 votes in favour, none against and 4 absten- ibid. , § 207). tions) ( 29 ibid. , § 213), Australia ( ibid. , § 214), Belgium See, e.g., the military manuals of Argentina ( , § 217), Canada ( ( ibid. , § 216), Cameroon ( ibid. , § 215), Benin ( ibid. , § 218), Croatia ( ibid. , ibid. §§ 219–220), Ecuador ( ibid. , § 221), France ( ibid. , § 222), Germany ( ibid. , § 223), Hungary ( ibid. , § 224), Israel ( ibid. ibid. , § 226), Kenya ( ibid. , § 227), Madagascar ( ibid. , § 228), , § 225), Italy ( ibid. ibid. , § 230), Nigeria ( ibid. , § 231), Philippines ( ibid. , Netherlands ( , § 229), New Zealand ( ibid. , § 233), Sweden ( ibid. , § 234), Switzerland ( ibid. , § 235), Togo ( ibid. § 232), Spain ( , § 236), United Kingdom ( , § 237), United States ( ibid. , §§ 238–240) and Yugoslavia ( ibid. , § 241). ibid. 30 ibid. , § 246), Iraq ( ibid. , § 248), Jordan ( ibid. , § 250), See, e.g., the statements of Indonesia ( Netherlands ( ibid. , § 252) and United Kingdom ( ibid. , § 254) and the reported practice of Iran , § 253), United States ( ( ibid. , § 249), Malaysia ( ibid. , § 251), Syria ( ibid. , § 247), Israel ( ibid. , ibid. § 255) and Zimbabwe ( ibid. , § 256). 31 See, e.g., the practice of Indonesia ( ibid. , § 246), Iraq ( ibid. , § 248), Israel ( ibid. , § 225), Kenya ( , § 227), United Kingdom ( ibid. , §§ 237 and 254) and United States ( ibid. , §§ 238–240) and ibid. the reported practice of Iran ( ibid. , § 247), Israel ( ibid. , § 249), Malaysia ( ibid. , § 251) and United States ( ibid. , § 255).

117 56 precautions in attack i.e., before the adoption of Additional Protocol I, to respect the obligation to do everything feasible to verify that targets are military objectives, the States 32 concerned (Egypt, Iraq, Israel and Syria) replied favourably. Non-international armed conflicts While Additional Protocol II does not include an explicit reference to this rule, more recent treaty law applicable in non-international armed conflicts does so, namely the Second Protocol to the Hague Convention for the Protection 33 of Cultural Property. In addition, the rule is contained in other instruments 34 pertaining also to non-international armed conflicts. The rule that it is incumbent upon the parties to do everything feasible to verify that targets are military objectives is set forth in military manuals which 35 are applicable in or have been applied in non-international armed conflicts. The jurisprudence of the International Criminal Tribunal for the Former ˇ ́ Kupre ski c case provides further evidence of the customary Yugoslavia in the nature of this rule in both international and non-international armed conflicts. In its judgement, the Tribunal considered that this rule was customary because 36 it specified and fleshed out general pre-existing norms. It can be argued indeed that the principle of distinction, which is customary in international and non- international armed conflicts, inherently requires respect for this rule. The Tribunal also relied on the fact that this rule had not been contested by any 37 State. This study found no official contrary practice either. Rule 17. Each party to the conflict must take all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects. Practice Volume II, Chapter 5, Section C. 32 See ICRC, The International Committee’s Action in the Middle East ( , § 263). ibid. 33 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 7 ibid. , § 208). ( 34 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , § 210); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. ibid. , , § 211); San Remo Manual, para. 46(b) ( § 212). 35 ibid. , § 216), Croatia ( ibid. , §§ 219–220), Ecuador ( ibid. , See, e.g., the military manuals of Benin ( § 221), Germany ( , § 223), Italy ( ibid. , § 226), Kenya ( ibid. , § 227), Madagascar ( ibid. , § 228), ibid. Nigeria ( ibid. , § 231), Philippines ( ibid. , § 232), Togo ( ibid. , § 236) and Yugoslavia ( ibid. , § 241). 36 ˇ ́ Kupre ski c case , Judgement ( ibid. , § 260). ICTY, 37 ˇ ́ ICTY, Kupre ski c case , Judgement ( ibid. , § 260).

118 Rule 17 57 Summary State practice establishes this rule as a norm of customary international law applicable in international and non-international armed conflicts. This rule must be applied independently of the simultaneous application of the principle of proportionality (see Rule 14). International armed conflicts The duty to take all feasible precautions in the choice of means and methods of warfare is set forth in Article 57(2)(a)(ii) of Additional Protocol I, to which 38 no relevant reservations have been made. 39 It is also sup- This obligation is included in numerous military manuals. 40 ported by official statements and reported practice. This practice includes 41 that of States not, or not at the time, party to Additional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to take all feasible precautions in the choice of means and methods of warfare, the States concerned (Egypt, 42 Iraq, Israel and Syria) replied favourably. Non-international armed conflicts While Additional Protocol II does not include an explicit reference to the obli- gation to take all feasible precautions in the choice of means and methods of warfare, more recent treaty law applicable in non-international armed con- flicts does so, namely the Second Protocol to the Hague Convention for the 43 Protection of Cultural Property. In addition, this rule is contained in other 44 instruments pertaining also to non-international armed conflicts. 38 Additional Protocol I, Article 57(2)(a)(ii) (adopted by 90 votes in favour, none against and 4 ibid. abstentions) ( , § 265). 39 ibid. , § 271), Australia ( , § 272), Benin ( ibid. , See, e.g., the military manuals of Argentina ( ibid. , § 274), Canada ( ibid. , § 275), Croatia ( ibid. , §§ 276–277), Ecuador ( ibid. , § 273), Cameroon ( ibid. ibid. § 278), France ( ibid. , § 280), Hungary ( ibid. , § 281), Israel ( ibid. , § 282), , § 279), Germany ( Italy ( ibid. , § 283), Kenya ( ibid. , § 284), Madagascar ( ibid. , § 285), Netherlands ( ibid. , § 286), New Zealand ( ibid. , § 287), Philippines ( ibid. , § 288), Spain ( ibid. , § 289), Sweden ( ibid. , § 290), Togo ( ibid. ibid. , § 292), United States ( ibid. , §§ 293–294) and Yugoslavia , § 291), United Kingdom ( ibid. , § 295). ( 40 ibid. , § 299), Iraq ( , § 301), Japan ( ibid. , § 303), Nether- See, e.g., the statements of Indonesia ( ibid. ibid. , § 305), United Kingdom ( ibid. , §§ 307–308) and United States ( lands ( , §§ 309–311) ibid. and the reported practice of Iran ( , § 300), Israel ( ibid. , § 302), Malaysia ( ibid. , § 304), Syria ibid. ibid. , § 306) and Zimbabwe ( ibid. , § 312). ( 41 See, e.g., the practice of Indonesia ( ibid. , § 299), Iraq ( ibid. , § 301), Israel ( ibid. , § 282), Japan ( ibid. , § 303), Kenya ( ibid. ibid. , §§ 292 and 307–308) and United States ( ibid. , , § 284), United Kingdom ( ibid. , § 300), Israel ( ibid. , § 302) and §§ 293–294 and 309–311) and the reported practice of Iran ( Malaysia ( ibid. , § 304). 42 ibid. , § 263). See ICRC, The International Committee’s Action in the Middle East ( 43 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 7 ( ibid. , § 208). 44 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , § 268); Agreement on the Application of IHL between the Parties to the

119 58 precautions in attack This rule is set forth in military manuals which are applicable in or have 45 been applied in non-international armed conflicts. The jurisprudence of the International Criminal Tribunal for the Former Yugoslavia and of the European Court of Human Rights provides further evi- dence of the customary nature of this rule in both international and non- 46 ˇ ́ international armed conflicts. In its judgement in the c case Kupre , the ski International Criminal Tribunal for the Former Yugoslavia considered that this rule was customary because it specified and fleshed out general pre-existing 47 norms. It can be argued indeed that the principle of distinction, which is customary in international and non-international armed conflicts, inherently requires respect for this rule. The Tribunal also relied on the fact that this rule 48 had not been contested by any State. This study found no official contrary practice either. Examples Examples of the application of this rule include considerations about the timing of attacks, avoiding combat in populated areas, the selection of means of warfare proportionate to the target, the use of precision weapons and target selection. In addition, Rule 21 sets out a specific requirement with respect to target selection. Rule 18. Each party to the conflict must do everything feasible to assess whether the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Practice Volume II, Chapter 5, Section D. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 269); San Remo Manual, para. 46(c) ( ibid. , § 270). 45 See, e.g., the military manuals of Benin ( ibid. , § 273), Croatia ( ibid. , §§ 276–277), Ecuador ( ibid. , § 278), Germany ( ibid. ibid. , § 283), Kenya ( ibid. , § 284), Madagascar ( ibid. , § 285), , § 280), Italy ( Philippines ( , § 288), Togo ( ibid. , § 291) and Yugoslavia ( ibid. , § 295). ibid. 46 ˇ ́ , § 260); European Court of Human Rights, ski ICTY, c case , Judgement ( ibid. Kupre Ergi v. Turkey ( , § 319). ibid. 47 ˇ ́ ibid. ski ICTY, c case , Judgement ( Kupre , § 260). 48 ˇ ́ ICTY, Kupre ski c case , Judgement ( ibid. , § 260).

120 Rule 18 59 International armed conflicts The duty to do everything feasible to assess whether the attack may be expected to cause excessive incidental damage is set forth in Article 57(2)(a)(iii) of Addi- 49 tional Protocol I, to which no relevant reservations have been made. 50 This obligation is included in numerous military manuals. It is also sup- 51 ported by official statements and reported practice. This practice includes 52 that of States not, or not at the time, party to Additional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to do everything feasi- ble to assess whether the attack may be expected to cause excessive incidental 53 damage, the States concerned (Egypt, Iraq, Israel and Syria) replied favourably. Non-international armed conflicts While Additional Protocol II does not include an explicit reference to the obli- gation to do everything feasible to assess whether the attack may be expected to cause excessive incidental damage, more recent treaty law applicable in non- international armed conflicts does so, namely the Second Protocol to the Hague 54 Convention for the Protection of Cultural Property. In addition, this rule is contained in other instruments pertaining also to non-international armed 55 conflicts. The rule whereby each party must do everything feasible to assess whether the attack may be expected to cause excessive incidental damage is set forth in military manuals which are applicable in or have been applied in non- 56 international armed conflicts. 49 Additional Protocol I, Article 57(2)(a)(iii) (adopted by 90 votes in favour, none against and 4 abstentions) ( ibid. , § 325). 50 ibid. , § 331), Australia ( See, e.g., the military manuals of Argentina ( , § 332), Belgium ( ibid. , ibid. ibid. , § 334), Cameroon ( ibid. § 333), Benin ( ibid. , § 336), Ecuador ( ibid. , § 337), , § 335), Canada ( France ( ibid. , § 338), Germany ( ibid. , § 339), Israel ( ibid. , § 340), Netherlands ( ibid. , § 341), New Zealand ( ibid. , § 342), Nigeria ( ibid. , § 343), Spain ( ibid. , § 344), Sweden ( ibid. , § 345), Togo ( ibid. ibid. , §§ 347–348) and Yugoslavia ( ibid. , § 349). , § 346), United States ( 51 See, e.g., the statements of Indonesia ( , § 353), Iraq ( ibid. , § 354), Netherlands ( ibid. , § 355), ibid. ibid. , §§ 357–358) and United States ( ibid. , § 359) and the reported practice of United Kingdom ( Syria ( ibid. ibid. , § 360). , § 356) and Zimbabwe ( 52 See, e.g., the practice of Indonesia ( , § 353), Iraq ( ibid. , § 354), Israel ( ibid. , § 340), United ibid. Kingdom ( ibid. , §§ 357–358) and United States ( ibid. , §§ 347–348 and 359). 53 See ICRC, The International Committee’s Action in the Middle East ( , § 365). ibid. 54 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 7 ( ibid. , § 326). 55 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , § 328); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 329); San Remo Manual, para. 46(d) ( ibid. , § 330). 56 See, e.g., the military manuals of Benin ( ibid. , § 334), Ecuador ( ibid. , § 337), Germany ( ibid. , § 339), Nigeria ( ibid. , § 343), Togo ( ibid. , § 346) and Yugoslavia ( ibid. , § 349).

121 60 precautions in attack The jurisprudence of the International Criminal Tribunal for the Former ́ ˇ Yugoslavia in the c case provides further evidence of the customary Kupre ski nature of this rule in both international and non-international armed conflicts. In its judgement, the Tribunal considered that this rule was customary because 57 it specified and fleshed out general pre-existing norms. It can be argued indeed that the principle of proportionality (see Rule 14), which is custom- ary in international and non-international armed conflicts, inherently requires respect for this rule. The Tribunal also relied on the fact that this rule had not 58 been contested by any State. This study found no official contrary practice either. Rule 19. Each party to the conflict must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Practice Volume II, Chapter 5, Section E. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The obligation to do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause excessive incidental damage is set forth in Article 57(2)(b) of Additional Protocol I, to which no relevant reservations have 59 been made. Upon ratification of Additional Protocol I, the United Kingdom stated that this obligation only applied to “those who have the authority and 60 practical possibility to cancel or suspend the attack”. 57 ˇ ́ ICTY, Kupre c case , Judgement ( ibid. , § 362). ski 58 ˇ ́ ICTY, ski Kupre c case , Judgement ( ibid. , § 362). 59 Additional Protocol I, Article 57(2)(b) (adopted by 90 votes in favour, none against and 4 absten- tions) ( ibid. , § 367). 60 United Kingdom, Reservations and declarations made upon ratification of Additional Protocol I ( ibid. , § 158).

122 Rule 19 61 61 It is also sup- This obligation is included in numerous military manuals. 62 This practice includes ported by official statements and reported practice. 63 that of States not, or not at the time, party to Additional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to do everything fea- sible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause excessive incidental damage, the States concerned (Egypt, Iraq, Israel and Syria) replied 64 favourably. Non-international armed conflicts While Additional Protocol II does not include an explicit reference to this rule, more recent treaty law applicable in non-international armed conflicts does so, namely the Second Protocol to the Hague Convention for the Protection 65 of Cultural Property. In addition, this rule is contained in other instruments 66 pertaining also to non-international armed conflicts. Military manuals which are applicable in or have been applied in non- international armed conflicts specify the obligation to do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a mili- tary objective or that the attack may be expected to cause excessive incidental 67 damage. The jurisprudence of the International Criminal Tribunal for the Former ˇ ́ ski provides further evidence of the customary Kupre Yugoslavia in the c case 61 See, e.g., the military manuals of Argentina ( , § 373), Australia ( ibid. , §§ 374–375), Belgium ibid. ( , § 376), Benin ( ibid. , § 377), Cameroon ( ibid. , § 378), Canada ( ibid. , § 379), Colombia ( ibid. , ibid. § 380), Croatia ( , § 381), France ( ibid. , § 382), Germany ( ibid. , § 383), Hungary ( ibid. , § 384), ibid. ibid. ibid. , § 386), Madagascar ( ibid. , § 387), Netherlands ( ibid. , § 388), Italy ( , § 385), Kenya ( ibid. , § 389), Spain ( ibid. , § 390), Sweden ( New Zealand ( , § 391), Switzerland ( ibid. , § 392), ibid. Togo ( ibid. , § 393), United Kingdom ( ibid. , § 394) and United States ( ibid. , § 395). 62 See, e.g., the statements of Indonesia ( ibid. , § 400), Iraq ( ibid. , § 401), Jordan ( ibid. , § 403), Netherlands ( ibid. ibid. , § 407) and United States ( ibid. , §§ 409–411) , § 405), United Kingdom ( ibid. , § 402), Malaysia ( , § 404), Syria ( ibid. , § 406), United and the reported practice of Israel ( ibid. , § 408) and Zimbabwe ( ibid. , § 412). States ( ibid. 63 ibid. , § 386), United Kingdom ( ibid. See, e.g., the military manuals of Kenya ( , § 394) and United States ( , § 395); the statements of Indonesia ( ibid. , § 400), Iraq ( ibid. , § 401), United Kingdom ibid. ibid. , § 407) and United States ( ibid. , §§ 409–411) and the reported practice of Israel ( ibid. , § 402), ( Malaysia ( ibid. , § 404) and United States ( ibid. , § 408). 64 See ICRC, The International Committee’s Action in the Middle East ( , § 417). ibid. 65 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 7 ibid. , § 368). ( 66 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the ibid. SFRY, para. 6 ( , § 370); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 371); San Remo Manual, para. 46(d) ( ibid. , § 372). 67 See, e.g., the military manuals of Australia ( ibid. , § 374), Benin ( ibid. , § 377), Colombia ( ibid. , ibid. § 380), Croatia ( , § 381), Germany ( ibid. , § 383), Italy ( ibid. , § 385), Kenya ( ibid. , § 386), Madagascar ( ibid. , § 387) and Togo ( ibid. , § 393).

123 62 precautions in attack nature of this rule in both international and non-international armed conflicts. In its judgement, the Tribunal considered that this rule was customary because 68 it specified and fleshed out general pre-existing norms. It can be argued indeed that the principle of distinction (see Rules 1 and 7) and the principle of propor- tionality (see Rule 14), both of which are customary in international and non- international armed conflicts, inherently require respect for this rule. Disregard for this rule would lead to an attack in violation of the principles of distinction and of proportionality and would be illegal on that basis. The Tribunal also 69 relied on the fact that this rule had not been contested by any State. This study found no official contrary practice either. Rule 20. Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit. Practice Volume II, Chapter 5, Section F. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The obligation to give effective advance warning prior to an attack which may affect the civilian population is a long-standing rule of customary international law already recognised in the Lieber Code, the Brussels Declaration and the 70 Oxford Manual. It was first codified in the Hague Regulations and is restated in Article 57(2)(c) of Additional Protocol I, to which no relevant reservations 71 have been made. 72 This obligation is included in a large number of military manuals. Some 73 The obligation to give advance warning national legislation incorporates it. 68 ́ ˇ ibid. c case , Judgement ( ski , § 416). ICTY, Kupre 69 ˇ ́ ICTY, Kupre ski , Judgement ( ibid. , § 416). c case 70 ibid. , § 424); Brussels Declaration, Article 16 ( ibid. Lieber Code, Article 19 ( , § 425); Oxford Manual, Article 33 ( ibid. , § 426). 71 Hague Regulations, Article 26 ( ibid. , §§ 420–421); Additional Protocol I, Article 57(2)(c) (adopted by 90 votes in favour, none against and 4 abstentions) ( ibid. , § 423). 72 See, e.g., the military manuals of Argentina ( , § 430), Australia ( ibid. , § 431), Belgium ( ibid. , ibid. ibid. , § 433), Cameroon ( ibid. , § 434), Canada ( ibid. § 432), Benin ( ibid. , § 436), , § 435), Croatia ( Ecuador ( ibid. , § 437), France ( ibid. , § 438), Germany ( ibid. , § 439), Italy ( ibid. , §§ 440–441), Kenya ( ibid. , § 442), Madagascar ( ibid. , § 443), Netherlands ( ibid. , §§ 444–445), New Zealand , § 448), Spain ( ( ibid. , § 447), South Africa ( ibid. , § 446), Nigeria ( ibid. , § 449), Sweden ( ibid. , ibid. § 450), Switzerland ( ibid. , § 451), Togo ( ibid. , § 452), United Kingdom ( ibid. , §§ 453–454), United States ( , §§ 455–457) and Yugoslavia ( ibid. , § 458). ibid. 73 , § 463). ibid. , § 460), Italy ( ibid. , § 461–462) and Norway ( ibid. See, e.g., the legislation of Ireland (

124 Rule 20 63 is also supported by official statements and other practice, including several 74 accounts of advance warning. Practice includes that of States not, or not at the 75 time, party to Additional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to give effective advance warning prior to an attack which may affect the civilian population, the States concerned (Egypt, Iraq, 76 Israel and Syria) replied favourably. Non-international armed conflicts While Additional Protocol II does not include an explicit reference to the obli- gation to give effective advance warning prior to an attack which may affect the civilian population, more recent treaty law applicable in non-international armed conflicts does so, namely Amended Protocol II to the Convention on 77 Certain Conventional Weapons. While this rule deals with the requirement to give warning of attacks which may affect the civilian population, it is never- theless relevant to point out that the concept of warnings has also been extended to non-international armed conflicts in the context of the protection of cultural 78 property. In addition, this rule is contained in other instruments pertaining 79 also to non-international armed conflicts. Military manuals which are applicable in or have been applied in non- 80 international armed conflicts specify this obligation. There are, in addition, several accounts of warnings that were issued in the context of non- 81 international armed conflicts. The jurisprudence of the International Criminal Tribunal for the Former ˇ ́ Kupre ski c case provides further evidence of the customary Yugoslavia in the 74 See, e.g., the statements of Netherlands ( ibid. , §§ 482–484), ibid. , § 476) and United States ( , § 467) and Israel ( ibid. , §§ 471–472) and the reported practice of the practice of France ( ibid. ibid. , § 468), Iran ( ibid. , § 469), Iraq ( ibid. Indonesia ( ibid. , §§ 473 and 489), Jordan , § 470), Israel ( ( , § 474), Syria ( ibid. , § 478), United Kingdom ( ibid. , § 479), United States ( ibid. , §§ 480–481 ibid. and 485) and Zimbabwe ( ibid. , § 486). 75 See, e.g., the military manuals of France ( ibid. , § 438), Kenya ( ibid. , § 442), United King- dom ( ibid. ibid. , §§ 455–457); the statements of the United , §§ 453–454) and United States ( ibid. , §§ 482–484); the practice of France ( , § 467) and Israel ( ibid. , §§ 471–472) States ( ibid. ibid. ibid. , § 469), Iraq ( ibid. , § 470), Israel and the reported practice of Indonesia ( , § 468), Iran ( ibid. , §§ 473 and 489), United Kingdom ( ibid. ( ibid. , §§ 480–481 and , § 479) and United States ( 485). 76 See ICRC, The International Committee’s Action in the Middle East ( , § 495). ibid. 77 Amended Protocol II to the CCW, Article 3(11). 78 See Second Protocol to the Hague Convention for the Protection of Cultural Property, Articles 6(d) and 13(2)(c). 79 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 (cited in Vol. II, Ch. 5, § 428); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 429). 80 See, e.g., the military manuals of Benin ( , § 433), Croatia ( ibid. , § 436), Ecuador ( ibid. , § 437), ibid. Germany ( , § 439), Italy ( ibid. , §§ 440–441), Kenya ( ibid. , § 442), Madagascar ( ibid. , § 443), ibid. Nigeria ( ibid. , § 447), South Africa ( ibid. , § 448), Togo ( ibid. , § 452) and Yugoslavia ( ibid. , § 458). 81 , § 475), Russia ( ibid. , § 465), Malaysia ( ibid. See, e.g., the reported practice of China ( ibid. , § 477) and two other States ( ibid. , §§ 487–488).

125 64 precautions in attack nature of this rule in both international and non-international armed conflicts. In its judgement, the Tribunal considered that this rule was customary because 82 it specified and fleshed out general pre-existing norms. It can be argued indeed that respect for the principle of distinction (see Rules 1 and 7) and the principle of proportionality (see Rule 14), both of which are customary in international and non-international armed conflicts, requires respect for this rule by infer- ence. The Tribunal also relied on the fact that this rule had not been contested 83 by any State. This study found no official contrary practice either. Instead, it found accounts of warnings given in the context of both international and 84 non-international armed conflicts. Interpretation As the rule indicates, State practice considers that a warning is not required when circumstances do not permit, such as in cases where the element of surprise is essential to the success of an operation or to the security of the 85 attacking forces or that of friendly forces. Necessary speed of response is another consideration cited in practice as relevant to determining the feasibility 86 of warnings. Furthermore, the rule provides that warnings must only be given of attacks which may affect the civilian population. Hence, the UK Military Manual con- siders that no warning is required if no civilians are left in the area to be 87 attacked. The US Air Force Pamphlet states that no warning is required if 88 civilians are unlikely to be affected by the attack. Some practice was found to interpret the requirement that a warning be “effective”. The United States, in particular, has stated that a warning need not be specific and may be general in order not to endanger the attacking forces 82 ́ ˇ Kupre ski c case , Judgement ( ibid. , § 492). ICTY, 83 ́ ˇ , Judgement ( c case ski ibid. , § 492). ICTY, Kupre 84 ibid. , § 465), Iran ( ibid. , § 469), Iraq ( ibid. , See, e.g., the practice and reported practice of China ( ibid. § 470), Israel ( ibid. , § 475), Russia ( ibid. , § 477), United , §§ 471–473 and 489), Malaysia ( ibid. Kingdom ( ibid. , §§ 480–481 and 485) and two other States ( ibid. , , § 479), United States ( §§ 487–488). 85 See, e.g., Hague Regulations, Article 26 ( ibid. , §§ 420–421); Additional Protocol I, Article 57(2)(c) (adopted by 90 votes in favour, none against and 4 abstentions) ( ibid. , § 423); Brussels Dec- ibid. , § 425); Oxford Manual, Article 33 ( , § 426); Memorandum of laration, Article 16 ( ibid. , § 428); ibid. Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herze- , § 429); practice of Australia ( govina, para. 2.5 ( , § 431), Belgium ( ibid. , § 432), Benin ibid. ibid. ibid. ( ibid. , § 434), Canada ( ibid. § 435), Croatia ( ibid. , § 436), Ecuador ( ibid. , , § 433), Cameroon ( § 437), France ( ibid. , §§ 438 and 467), Germany ( ibid. , § 439), Italy ( ibid. , §§ 440–441), Kenya ( ibid. , § 442), Madagascar ( ibid. , § 443), Netherlands ( ibid. , §§ 444–445), New Zealand ( ibid. , , § 446), South Africa ( ibid. , § 449), Switzerland ( ibid. , § 451), Togo ( ibid. , § 448), Spain ( ibid. § 452), United Kingdom ( ibid. , §§ 453–454), United States ( ibid. , §§ 455–457 and 483–484) and Yugoslavia ( ibid. , § 458) and the reported practice of Israel ( ibid. , § 473). 86 ibid. , § 473). See, e.g., the reported practice of Israel ( 87 United Kingdom, Military Manual ( ibid. , § 453). 88 United States, Air Force Pamphlet ( ibid. , § 456).

126 Rule 21 65 or the success of their mission. It has also stated that such a general warning can consist of a blanket alert delivered by broadcast advising the civilian population 89 to stay away from certain military objectives. State practice indicates that all obligations with respect to the principle of distinction and the conduct of hostilities remain applicable even if civilians remain in the zone of operations after a warning has been issued. Threats that all remaining civilians would be considered liable to attack have been condemned 90 and withdrawn. Rule 21. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected must be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. Practice Volume II, Chapter 5, Section G. Summary State practice establishes this rule as a norm of customary international law applicable in international, and arguably also in non-international, armed conflicts. International armed conflicts The requirement that, when a choice is possible, the military objective to be selected be that which may be expected to cause the least danger to civilian lives and to civilian objects is set forth in Article 57(3) of Additional Protocol 91 I, to which no relevant reservations have been made. 92 It is also This obligation is included in numerous military manuals. 93 supported by official statements and reported practice. This practice includes that of States not, or not at the time, party to Additional 89 See the practice of the United States ( ibid. , §§ 456, 483 and 485); see also the reported practice of Israel ( ibid. , § 473). 90 ibid. See the practice of Israel ( ibid. , § 477). , § 489) and Russia ( 91 Additional Protocol I, Article 57(3) (adopted by 90 votes in favour, none against and 4 abstentions) ( ibid. , § 502). 92 See, e.g., the military manuals of Australia ( ibid. , § 506), Benin ( ibid. , § 507), Canada ( ibid. , § 508), Croatia ( ibid. ibid. , § 511), Germany ( ibid. , § 512), Hungary , §§ 509–510), France ( ibid. ibid. ibid. , § 514), Kenya ( ibid. , § 515), Madagascar ( ( , § 516), Netherlands , § 513), Italy ( , § 519), Spain ( ibid. ibid. , § 518), Nigeria ( ibid. ( ibid. , § 520), Sweden ( ibid. , , § 517), New Zealand ( § 521), Togo ( ibid. , § 522), United States ( ibid. , § 523) and Yugoslavia ( ibid. , § 524). 93 ibid. , § 528), Jordan ( ibid. , § 531), Netherlands ( ibid. , § 533) See, e.g., the practice of Indonesia ( and United States ( ibid. , § 535, but see ibid. , § 536) and the reported practice of Iran ( ibid. , § 529), Israel ( ibid. , § 530), Malaysia ( ibid. , § 532), Syria ( ibid. , § 534) and Zimbabwe ( ibid. , § 537).

127 66 precautions in attack 94 When the ICRC appealed to the parties to the conflict in the Protocol I. Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to respect the requirement that, when a choice is possible, the military objec- tive to be selected be that which may be expected to cause the least danger to civilian lives and to civilian objects, the States concerned (Egypt, Iraq, Israel 95 and Syria) replied favourably. Non-international armed conflicts While Additional Protocol II does not contain an explicit reference to the requirement that, when a choice is possible, the military objective to be selected be that which may be expected to cause the least danger to civilian lives and to civilian objects, it has been included in more recent treaty law applica- ble in non-international armed conflicts, namely the Second Protocol to the 96 Hague Convention for the Protection of Cultural Property. In addition, it is specified in other instruments pertaining also to non-international armed 97 conflicts. Military manuals which are applicable in or have been applied in non- international armed conflicts specify the requirement that, when a choice is possible, the military objective to be selected be that the attack on which may 98 be expected to cause the least danger to civilian lives and to civilian objects. The jurisprudence of the International Criminal Tribunal for the Former ́ ˇ Kupre Yugoslavia in the c case provides further evidence of the customary ski nature of this rule in both international and non-international armed conflicts. In its judgement, the Tribunal considered that this rule was customary because 99 it specified and fleshed out general pre-existing norms. It can be argued indeed that the principle of proportionality (see Rule 14) and the obligation to take all feasible precautions to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects (see Rule 15), which are customary in both international and non-international armed con- flicts, inherently require respect for this rule. The Tribunal also relied on the 94 ibid. See, e.g., the practice of France ( ibid. , § 528), Kenya ( ibid. , § 515) and , § 511), Indonesia ( United States ( ibid. , §§ 523 and 535) and the reported practice of Iran ( ibid. , § 529), Israel ( ibid. , § 530) and Malaysia ( ibid. , § 532). 95 See ICRC, The International Committee’s Action in the Middle East ( , § 541). ibid. 96 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 6 (cited in Vol. II, Ch. 12, § 21). 97 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 (cited in Vol. II, Ch. 5, § 504); Agreement on the Application of IHL between the ibid. , § 505). Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( 98 See, e.g., the military manuals of Benin ( ibid. , § 507), Croatia ( ibid. , §§ 509–510), Germany ( ibid. , § 512), Italy ( ibid. , § 514), Kenya ( ibid. , § 515), Madagascar ( ibid. , § 516), Nigeria ( ibid. , § 519), Togo ( , § 522) and Yugoslavia ( ibid. , § 524). ibid. 99 ˇ ́ ICTY, ski , § 539). c case , Judgement ( ibid. Kupre

128 Rule 21 67 100 This study found no fact that this rule had not been contested by any State. official contrary practice either. There is only one instance of apparently contrary practice. In response to an ICRC memorandum on the applicability of international humanitarian law in the Gulf region, the United States denied that this rule was customary but 101 then restated the rule and recognised its validity, consistent with its other 102 practice referred to above. This rule should also be seen as a further specification of Rule 17 on the precautions to be taken in the choice of means and methods of warfare. Some States indicate that target selection is a means of complying with that require- ment, and this rule describes a way in which target selection can operate as a precautionary measure. Interpretation The United States has emphasised that the obligation to select an objective the attack on which may be expected to cause the least danger to civilian lives and to civilian objects is not an absolute obligation, as it only applies “when a choice is possible” and thus “an attacker may comply with it if it is possible to do so, subject to mission accomplishment and allowable risk, or he may 103 determine that it is impossible to make such a determination”. 100 ˇ ́ ICTY, Kupre ski c case , Judgement ( ibid. , § 539). 101 See the practice of the United States ( , § 536). ibid. 102 See the practice of the United States ( ibid. , §§ 523 and 535). 103 See the practice of the United States ( ibid. , § 536).

129 chapter 6 PRECAUTIONS AGAINST THE EFFECTS OF ATTACKS Rule 22. The parties to the conflict must take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks. Practice Volume II, Chapter 6, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This is a basic rule to which more content is given by the specific obligations contained in Rules 23–24. The practice collected in terms of those specific obligations is also relevant to prove the existence of this rule and vice versa . International armed conflicts The duty of each party to the conflict to take all feasible precautions to protect the civilian population and civilian objects under its control against the effects of attacks is set forth in Article 58(c) of Additional Protocol I, to which no 1 reservations have been made. Numerous military manuals restate the duty of parties to the conflict to take all feasible precautions to protect the civilian population and civilian objects 2 under their control against the effects of attacks. This obligation is supported 3 by official statements and reported practice. This practice includes that of 4 States not, or not at the time, party to Additional Protocol I. 1 Additional Protocol I, Article 58(c) (adopted by 80 votes in favour, none against and 8 abstentions) (cited in Vol. II, Ch. 6, § 1). 2 See, e.g., the military manuals of Argentina ( ibid. , § 9), Cameroon ( ibid. , § 11), Canada ( ibid. , § 12), Croatia ( ibid. , § 13), Germany ( ibid. , § 14), Italy ( ibid. , § 15), Kenya ( ibid. , § 16), Madagascar ( ibid. , § 17), Netherlands ( ibid. ibid. , § 19), Nigeria ( ibid. , § 20), Russia ( ibid. , § 21), , § 18), New Zealand ( ibid. , § 23) and United States ( ibid. Spain ( ibid. , § 25). , § 22), Sweden ( 3 ibid. , § 31), Iraq ( ibid. , § 34) and United States ( ibid. , § 40) See, e.g., the statements of Germany ( and the reported practice of Iran ( ibid. , § 33), Malaysia ( ibid. , § 36), Syria ( ibid. , § 39) and Zim- babwe ( , § 41). ibid. 4 See, e.g., the practice of Iraq ( ibid. , § 34), Kenya ( ibid. , § 16) and United States ( ibid. ,§§25and 40) and the reported practice of Iran ( ibid. , § 33) and Malaysia ( ibid. , § 36). 68

130 Rule 22 69 Non-international armed conflicts The obligation to take all feasible precautions to protect the civilian population and civilian objects against the effects of attacks was included in the draft of Additional Protocol II but was dropped at the last moment as part of a package 5 aimed at the adoption of a simplified text. As a result, Additional Protocol II does not explicitly require precautions against the effects of attack. Article 13(1) requires that “the civilian population and individual civilians shall enjoy gen- 6 eral protection against the dangers arising from military operations”. It would be difficult to comply with this requirement without taking precautions against the effects of attack. The requirement to take precautions against the effects of attacks has, moreover, been included in more recent treaty law applicable in non-international armed conflicts, namely the Second Protocol to the Hague 7 Convention for the Protection of Cultural Property. In addition, this rule is contained in other instruments pertaining also to non-international armed 8 conflicts. Military manuals which are applicable in or have been applied in non- international armed conflicts specify the requirement to take precautions 9 10 against the effects of attacks. It is supported by reported practice. In 1965, the 20th International Conference of the Red Cross adopted a resolu- tion calling on governments and other authorities responsible for action in all 11 armed conflicts to spare the civilian population as much as possible. This was reaffirmed by the UN General Assembly in a resolution on respect for human 12 rights in armed conflict adopted in 1968. In addition, in a resolution adopted in 1970 on basic principles for the protection of civilian populations in armed conflicts, the UN General Assembly required that “in the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, 13 loss or damage to civilian populations”. 5 Draft Additional Protocol II submitted by the ICRC to the International Conference leading to the adoption of the Additional Protocols, Article 24(2) ( ibid. , § 3). 6 Additional Protocol II, Article 13(1) (adopted by consensus) ( ibid. , § 2). 7 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 8 (cited in Vol. II, Ch. 12, § 290). 8 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 (cited in Vol. II, Ch. 6, § 5); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 6); CSCE Code of Conduct, ibid. , § 7); UN Secretary-General’s Bulletin, Section 5.4 ( ibid. para. 36 ( , § 8). 9 See, e.g., the military manuals of Croatia ( ibid. , § 13), Germany ( ibid. , § 14), Italy ( ibid. , § 15), Kenya ( ibid. , § 16), Madagascar ( ibid. , § 17) and Nigeria ( ibid. , § 20). 10 ibid. , § 30) and Malaysia ( ibid. , § 36). See, e.g., the reported practice of Algeria ( 11 20th International Conference of the Red Cross, Res. XXVIII ( ibid. , § 45). 12 UN General Assembly, Res. 2444 (XXIII) (adopted by unanimous vote of 111 votes in favour, none against and no abstentions) ( ibid. , § 42). 13 UN General Assembly, Res. 2675 (XXV) (adopted by 109 votes in favour, none against and 8 abstentions) ( ibid. , § 43).

131 70 precautions against the effects of attacks The jurisprudence of the International Criminal Tribunal for the Former ˇ ́ c case provides further evidence of the customary ski Yugoslavia in the Kupre nature of the requirement to take precautions against the effects of attacks in both international and non-international armed conflicts. In its judgement, the Tribunal considered that this rule was customary because it specified and 14 fleshed out general pre-existing norms. It can be argued indeed that the prin- ciple of distinction (see Rules 1 and 7), which is customary in international and non-international armed conflicts, inherently requires respect for this rule. The Tribunal also relied on the fact that this rule had not been contested by any 15 State. This study found no official contrary practice either. This practice should be read together with the extensive practice on the prohibition of the use of human shields (see Rule 97). The deliberate violation of the obligation to take all feasible precautions against the effects of attacks is often related to the use of human shields. In addition, international case- law has confirmed the obligation under international human rights law to take positive steps to protect life (see commentary to Rule 97). Examples of precautions against the effects of attacks Specific examples of how the general obligation to take precautions against the effects of attacks has been implemented include first and foremost the two specific obligations identified in Rules 23 and 24 below. In addition, practice has shown that the construction of shelters, digging of trenches, distribution of information and warnings, withdrawal of the civilian population to safe places, direction of traffic, guarding of civilian property and the mobilisation of civil defence organisations are measures that can be taken to spare the civilian population and civilian objects under the control of a party to the conflict. Feasibility of precautions against the effects of attack The obligation to take precautions against the effects of attacks “to the extent feasible” has been interpreted by many States as meaning that the obligation is limited to those precautions which are practicable or practically possible, taking into account all circumstances ruling at the time, including humani- 16 The Rapporteur of the Working Group at tarian and military considerations. 14 ˇ ́ ICTY, ski Kupre c case , Judgement ( ibid. , § 46). 15 ˇ ́ ski ICTY, c case , Judgement ( ibid. , § 46). Kupre 16 See the statements of Algeria ( ibid. , § 49), Belgium ( ibid. , § 49), Cameroon ( ibid. , § 56), Canada ( ibid. , §§ 49 and 57), France ( ibid. , § 49), Germany ( ibid. , §§ 49 and 58), Ireland ( ibid. , § 49), , § 49), United Kingdom Italy ( , §§ 49 and 59), Netherlands ( ibid. , §§ 49 and 60), Spain ( ibid. ibid. ( ibid. , §§ 49 and 61) and United States ( ibid. , § 62).

132 Rule 23 71 the Diplomatic Conference leading to the adoption of the Additional Proto- cols reported that after the phrase “to the maximum extent feasible” had been introduced to qualify all subparagraphs of Article 58, agreement was quickly 17 reached. According to the Rapporteur, this revision reflected the concern of small and densely populated countries which would find it difficult to separate civilians and civilian objects from military objectives and that even large coun- tries would find such separation difficult or impossible to arrange in many 18 cases. Upon ratification of Additional Protocol I, Austria and Switzerland stated that the obligation would be applied subject to the requirements of the 19 defence of the national territory. State practice indicates that an attacker is not prevented from attacking mil- itary objectives if the defender fails to take appropriate precautions or deliber- ately uses civilians to shield military operations. The attacker remains bound in all circumstances, however, to take appropriate precautions in attack (see Rule 15) and must respect the principle of proportionality (see Rule 14) even though the defender violates international humanitarian law. Information required for deciding upon precautions against the effects of attack Numerous States have indicated that military commanders have to reach deci- sions concerning the taking of precautions against the effects of attack on the basis of their assessment of the information from all sources which is available 20 to them at the relevant time. Rule 23. Each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas. Practice Volume II, Chapter 6, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in international, and arguably also in non-international, armed 17 Diplomatic Conference leading to the adoption of the Additional Protocols, Report to Commit- tee III on the Work of the Working Group ( ibid. , § 65). 18 Diplomatic Conference leading to the adoption of the Additional Protocols, Report to Commit- tee III on the Work of the Working Group ( , § 65). ibid. 19 Austria, Reservations made upon ratification of Additional Protocol I ( ibid. , § 50); Switzerland, Reservations made upon ratification of Additional Protocol I ( ibid. , § 51). 20 See Ch. 4, footnote 33.

133 72 precautions against the effects of attacks conflicts. This rule is an application of the principle of distinction (see Rules 1 and 7). It is also related to the prohibition of human shields (see Rule 97), as everything feasible must be done to separate military objectives from the civilian population, but in no event may civilians be used to shield military objectives. International armed conflicts The duty of each party to the conflict to avoid locating military objectives within or near densely populated areas is set forth in Article 58(b) of Additional 21 It Protocol I, to which no reservations relevant to this rule have been made. 22 is also contained in the Israel-Lebanon Ceasefire Understanding of 1996. 23 It is also sup- A large number of military manuals include this obligation. 24 ported by official statements and reported practice. This practice includes 25 that of States not, or not at the time, party to Additional Protocol I. Non-international armed conflicts Although Additional Protocol II does not explicitly require precautions against the effects of attacks, Article 13(1) stipulates that “the civilian population and individual civilians shall enjoy general protection against the dangers aris- ing from military operations” and it would be difficult to afford such pro- tection when military objectives are located within or near densely popu- 26 lated areas. The requirement to take this precaution against the effects of attacks has, moreover, been included in more recent treaty law applicable in non-international armed conflicts, namely the Second Protocol to the Hague 27 Convention for the Protection of Cultural Property. In addition, this rule 21 Additional Protocol I, Article 58(b) (adopted by 80 votes in favour, none against and 8 abstentions) (cited in Vol. II, Ch. 6, § 70). 22 Israel-Lebanon Ceasefire Understanding, Article 3 ( ibid. , § 71). 23 ibid. , § 77), Australia ( See, e.g., the military manuals of Argentina ( , § 78), Benin ( ibid. , § 79), ibid. ibid. , § 80), Croatia ( ibid. , §§ 81–82), Ecuador ( Canada ( , § 83), Hungary ( ibid. , § 84), Israel ibid. ( , § 85), Italy ( ibid. , § 86), Kenya ( ibid. ibid. ibid. , § 88), Netherlands ( ibid. , , § 87), Madagascar ( § 89), New Zealand ( ibid. , § 90), Nigeria ( ibid. , § 91), Russia ( ibid. , § 92), Spain ( ibid. , § 93), Sweden ( ibid. ibid. , § 95), Togo ( ibid. , § 96), United Kingdom ( ibid. , § 97) , § 94), Switzerland ( ibid. and United States ( , § 98). 24 ibid. , § 105), Iraq ( ibid. , § 107), Israel ( ibid. , §§ 105 and 108), See, e.g., the statements of France ( Lebanon ( ibid. ibid. , § 105), United Kingdom ( ibid. , § 116) and United , §§ 105 and 113), Syria ( ibid. , §§ 105 and 117–123) and the reported practice of Botswana ( ibid. , § 102), Egypt States ( ( ibid. , § 104), Israel ( ibid. , § 109), Jordan ( ibid. , § 110), Kuwait ( ibid. , § 112), Malaysia ( ibid. , § 114), Syria ( ibid. ibid. , § 124) and Zimbabwe ( ibid. , § 125). , § 115), United States ( 25 ibid. , § 105), Iraq ( ibid. , § 107), Israel ( ibid. , §§ 71, 85, 105 and See, e.g., the practice of France ( 108), Kenya ( ibid. , § 87), United Kingdom ( ibid. , §§ 97 and 116) and United States ( ibid. , §§ 98, 105 and 117–123) and the reported practice of Israel ( , § 109), Malaysia ( ibid. , § 114) and ibid. United States ( ibid. , § 124). 26 Additional Protocol II, Article 13(1) (adopted by consensus) ( ibid. , § 2). 27 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 8 (cited in Vol. II, Ch. 12, § 292).

134 Rule 23 73 is contained in other instruments pertaining also to non-international armed 28 conflicts. Military manuals which are applicable in or have been applied in non- international armed conflicts specify the duty of each party to the conflict 29 to avoid locating military objectives within or near densely populated areas. The jurisprudence of the International Criminal Tribunal for the Former ˇ ́ Yugoslavia in the c case Kupre provides further evidence of the customary ski nature of the duty of each party to the conflict to avoid locating military objec- tives within or near densely populated areas in both international and non- international armed conflicts. In its judgement, the Tribunal considered that this rule was customary because it specified and fleshed out general pre-existing 30 norms. It can be argued indeed that the principle of distinction (see Rules 1 and 7) and the principle of proportionality (see Rule 14), which are both customary in international and non-international armed conflicts, inherently require respect for this rule. The Tribunal also relied on the fact that this rule had not been 31 contested by any State. This study found no official contrary practice either. In 1979, in the context of the conflict in Rhodesia/Zimbabwe, the ICRC appealed to the Patriotic Front to “clearly separate civilian establishments, 32 particularly refugee camps, from military installations”. The rules which require that persons deprived of their liberty be held in premises which are removed from the combat zone (see Rule 121) and that in case of displacement all possible measures be taken in order that the civil- ian population may be received under satisfactory conditions of safety (see Rule 131), which are both applicable in international and non-international armed conflicts, are also relevant in establishing the customary nature of this rule. Interpretation While some practice refers to the duty to locate military bases and installa- tions outside densely populated areas, practice in general limits this obligation to what is feasible. It is possible, as several reports on State practice point out, that demographic changes cause military bases to be located within or near 33 cities where this was originally not the case. When such objectives involve 28 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 (cited in Vol. II, Ch. 6, § 74); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 75); UN Secretary-General’s Bulletin, Section 5.4 ( ibid. , § 76). 29 See, e.g., the military manuals of Benin ( , § 79), Croatia ( ibid. , §§ 81–82), Ecuador ( ibid. , § 83), ibid. , § 91) and Togo ( ibid. ibid. Italy ( ibid. , § 88), Nigeria ( ibid. , § 86), Kenya ( ibid. , , § 87), Madagascar ( § 96). 30 ˇ ́ , Judgement ( ski ICTY, c case Kupre ibid. , § 46). 31 ˇ ́ ski ICTY, Kupre , Judgement ( ibid. , § 46). c case 32 See ICRC, Conflict in Southern Africa: ICRC appeal ( ibid. , § 131). 33 , § 109), Kuwait ( ibid. , § 106), Israel ( ibid. See the Reports on the Practice of Iran ( ibid. , § 112) and Malaysia ( ibid. , § 114).

135 74 precautions against the effects of attacks immovable property, it is less feasible to move them than in the case of mov- able property. At the Diplomatic Conference leading to the adoption of the Additional Protocols, South Korea stated that this rule “does not constitute a 34 restriction on a State’s military installations on its own territory”. Dual use installations, such as railway stations and airports, may even be located near or inside densely populated areas on purpose. Rule 24. Each party to the conflict must, to the extent feasible, remove civilian persons and objects under its control from the vicinity of military objectives. Practice Volume II, Chapter 6, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in international, and arguably also in non-international, armed con- flicts. This rule is an application of the principle of distinction (see Rules 1 and 7). It is also related to the prohibition on using human shields (see Rule 97), as everything feasible must be done to evacuate the civilian population from the vicinity of military objectives; in no event may civilians be used to shield military objectives. International armed conflicts The duty of each party to the conflict, to the extent feasible, to remove civilian persons and objects under its control from the vicinity of military objectives is set forth in Article 58(a) of Additional Protocol I, to which no reservations 35 relevant to this rule have been made. 36 A large number of military manuals restate this obligation. It is also sup- 37 ported by official statements and reported practice. This practice includes 38 that of States not, or not at the time, party to Additional Protocol I. 34 South Korea, Statement at the Diplomatic Conference leading to the adoption of the Additional ibid. , § 111). Protocols ( 35 Additional Protocol I, Article 58(a) (adopted by 80 votes in favour, none against and 8 abstentions) ( ibid. , § 133). 36 ibid. See, e.g., the military manuals of Argentina ( ibid. , § 139), Benin ( ibid. , , § 138), Australia ( § 140), Cameroon ( ibid. , § 141), Canada ( ibid. , § 142), Croatia ( ibid. , § 143), Ecuador ( ibid. , § 144), France ( ibid. , § 145), Israel ( ibid. , § 146), Italy ( ibid. , § 147), Kenya ( ibid. , § 148), Madagascar ( ibid. ibid. , § 150), New Zealand ( ibid. , § 151), Nigeria ( ibid. , § 152), Spain , § 149), Netherlands ( ibid. , § 155), Togo ( ibid. , § 154), Switzerland ( ibid. ( ibid. , § 156), United Kingdom , § 153), Sweden ( ibid. , § 157) and United States ( ibid. , §§ 158–159). ( 37 ibid. , § 164) and United States ( ibid. , §§ 169–172) and the See, e.g., the statements of Iraq ( reported practice of Egypt ( ibid. , § 163), Jordan ( ibid. , § 165), Kuwait ( ibid. , § 166), Syria ( ibid. , § 168), United States ( , § 173) and Zimbabwe ( ibid. , § 174). ibid. 38 See, e.g., the practice of France ( ibid. , § 145), Iraq ( ibid. , § 164), Israel ( ibid. , § 146), Kenya ( ibid. , § 148), United Kingdom ( ibid. , § 157) and United States ( ibid. , §§ 158–159 and 169–172) and the reported practice of the United States ( ibid. , § 173).

136 Rule 24 75 Non-international armed conflicts Although Additional Protocol II does not explicitly require precautions against the effects of attacks, Article 13(1) stipulates that “the civilian population and individual civilians shall enjoy general protection against the dangers arising 39 from military operations”. It would be difficult to afford such protection when civilian persons and objects are not removed from the vicinity of military objectives whenever feasible. The requirement to take this precaution against the effects of attacks has, moreover, been included in more recent treaty law applicable in non-international armed conflicts, namely the Second Protocol 40 to the Hague Convention for the Protection of Cultural Property. In addition, this rule is contained in other instruments pertaining also to non-international 41 armed conflicts. Military manuals which are applicable in or have been applied in non- international armed conflicts specify the duty of each party to the conflict, to the extent feasible, to remove civilian persons and objects under its control 42 from the vicinity of military objectives. The jurisprudence of the International Criminal Tribunal for the Former ́ ˇ ski c case Yugoslavia in the contains further evidence of the custom- Kupre ary nature of the duty of each party to the conflict, to the extent feasible, to remove civilian persons and objects under its control from the vicinity of mili- tary objectives in both international and non-international armed conflicts. In its judgement, the Tribunal considered that this rule was customary because 43 it specified and fleshed out general pre-existing norms. It can be argued indeed that the principle of distinction (see Rules 1 and 7), which is custom- ary in international and non-international armed conflicts, inherently requires respect for this rule. The Tribunal also relied on the fact that this rule had not 44 been contested by any State. This study found no official contrary practice either. The ICRC has reminded parties to both international and non-international armed conflicts of the obligation, to the extent feasible, to remove civil- ian persons and objects under their control from the vicinity of military 45 objectives. 39 ibid. , § 2). Additional Protocol II, Article 13(1) (adopted by consensus) ( 40 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 8. 41 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , § 136); Agreement on the Application of IHL between the Parties to the , § 137). ibid. Conflict in Bosnia and Herzegovina, para. 2.5 ( 42 , § 140), Croatia ( See, e.g., the military manuals of Benin ( , § 143), Ecuador ( ibid. , § 144), ibid. ibid. ibid. , § 147), Kenya ( ibid. , § 148), Madagascar ( ibid. , § 149), Nigeria ( ibid. , § 152) and Togo Italy ( ibid. , § 156). ( 43 ˇ ́ ICTY, ski Kupre c case , Judgement ( ibid. , § 176). 44 ˇ ́ Kupre ski c case , Judgement ( ibid. , § 176). ICTY, 45 See, e.g., ICRC, Memorandum on Respect for International Humanitarian Law in Angola ( ibid. , § 180) and Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Op eration Turquoise ( ibid. , § 181). ́

137 76 precautions against the effects of attacks Interpretation The obligation on each party to the conflict, to the extent feasible, to remove civilian persons and objects under its control from the vicinity of military objectives is particularly relevant where military objectives can not feasibly be separated from densely populated areas according to Rule 23. This rule is also related to the prohibition of the forcible displacement of a civilian population unless its security demands that it be evacuated (see Rule 129), because it specifies that evacuation must be undertaken to the extent feasible. According to the US Naval Handbook, “a party to an armed conflict has an affirmative duty to remove civilians under its control as well as the wounded, sick, shipwrecked, and prisoners of war from the vicinity of targets of likely 46 enemy attacks”. The extension of this rule to the wounded, sick and ship- wrecked and to prisoners of war is consistent with Rules 109–111 concerning the evacuation, care and protection of the wounded sick and shipwrecked and with Rule 121 concerning the holding of persons deprived of their liberty in premises which are removed from the combat zone. 46 United States, Naval Handbook ( ibid. , § 159).

138 part ii SPECIFICALLY PROTECTED PERSONS AND OBJECTS

139

140 chapter 7 MEDICAL AND RELIGIOUS PERSONNEL AND OBJECTS Rule 25. Medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy. Practice Volume II, Chapter 7, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts This rule goes back to the 1864 Geneva Convention and was repeated in the 1 subsequent Geneva Conventions of 1906 and 1929. It is now set forth in the 2 First, Second and Fourth Geneva Conventions of 1949. Its scope was expanded in Article 15 of Additional Protocol I to cover civilian medical personnel in 3 addition to military medical personnel in all circumstances. This extension is widely supported in State practice, which generally refers to medical person- 4 nel without distinguishing between military or civilian medical personnel. 1 1864 Geneva Convention, Article 2 (cited in Vol. II, Ch. 7, § 1); 1906 Geneva Convention, Articles 9–10 ( ibid. , §§ 4–5). ibid. , §§ 2–3); 1929 Geneva Convention, Articles 9–10 ( 2 ibid. , §§ 6–8); Second Geneva Convention, Article 36 First Geneva Convention, Articles 24–26 ( ibid. ( ibid. , § 10). , § 9); Fourth Geneva Convention, Article 20 ( 3 Additional Protocol I, Article 15 (adopted by consensus) ( ibid. , § 12). 4 ibid ., § 27), Canada ( See, e.g., the military manuals of Burkina Faso ( ., § 31), Colombia ( ibid ., ibid ibid ., § 34), Croatia ( ibid §§ 32–33), Congo ( ibid ., § 37), Ecuador ., § 36), Dominican Republic ( ( ., § 38), El Salvador ( ibid ., § 39), France ( ibid ibid ibid ., § 44), Lebanon ( ibid ., § 51), ., § 40), Hungary ( Mali ( ibid ., § 53), Morocco ( ibid ., § 54), Netherlands ( ibid ., § 56), Nicaragua ( ibid ., § 58), Nigeria ( ibid ibid ., § 63), Russia ( ibid ., § 64), Senegal ( ibid ., § 65), Switzerland ., §§ 59 and 61–62), Romania ( ibid ibid ., § 72) and United States ( ibid ., § 76); the legislation of Bosnia ( ., § 69), United Kingdom ( ibid ., § 81), Colombia ( ibid ., §§ 82–83), Croatia ( ibid and Herzegovina ( ibid ., ., § 84), El Salvador ( § 85), Estonia ( ibid ., § 87), Ethiopia ( ibid ., § 88), Georgia ( ibid ., § 89), Nicaragua ( ibid ., § 93), Poland ( ibid ., § 96), Slovenia ( ibid ., § 98), Spain ( ibid ., §§ 99–100), Tajikistan ( ibid ., § 101), Ukraine ( ibid ., § 102), Venezuela ( ibid ibid ., § 105); see also the draft legislation ., §§ 103–104) and Yugoslavia ( ibid of Argentina ( ibid ., § 86), Nicaragua ( ibid ., § 94) and the statements of ., § 79), El Salvador ( China ( ibid ., § 109), Iraq ( ibid ., § 116), Kuwait ( ibid ., §§ 118–119), United Kingdom ( ibid ., § 126), United States ( ibid ., § 131) and Venezuela ( ibid ., § 135). 79

141 80 medical and religious personnel and objects It is also supported by States not, or not at the time, party to Additional 5 Protocol I. Under the Statute of the International Criminal Court, “intentionally direct- ing attacks against...personnel using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime 6 in international armed conflicts. This war crime is relevant to medical per- sonnel because they are entitled to use the distinctive emblems of the Geneva Conventions. Numerous military manuals recall the obligation to respect and protect med- 7 ical personnel. Under the legislation of many States, it is a war crime to vio- 8 late this rule. Furthermore, the rule is supported by official statements and 9 reported practice. Non-international armed conflicts This rule is implicit in common Article 3 of the Geneva Conventions, which requires that the wounded and sick be collected and cared for, because the protection of medical personnel is a subsidiary form of protection granted to 10 ensure that the wounded and sick receive medical care. The rule that medical personnel must be respected and protected is explicitly stated in Additional 11 Protocol II. In addition, under the Statute of the International Criminal Court, “intentionally directing attacks against . . . personnel using the distinc- tive emblems of the Geneva Conventions in conformity with international 5 See, e.g., the military manuals of France ( ibid. , § 41) and United States ( ibid. , §§ 75 and 77). 6 , § 832). ICC Statute, Article 8(2)(b)(xxiv) ( ibid. 7 See, e.g., the military manuals of Argentina ( ibid. , §§ 19–20), Australia ( ibid. , §§ 21–22), Belgium ibid. , §§ 23–24), Benin ( ibid. , § 25), Bosnia and Herzegovina ( ibid. , § 26), Burkina Faso ( ( , ibid. § 27), Cameroon ( , §§ 28–29), Canada ( ibid. , §§ 30–31), Colombia ( ibid. , §§ 32–33), Congo ibid. ibid. , § 34), Croatia ( , §§ 35–36), Dominican Republic ( ibid. , § 37), Ecuador ( ibid. , § 38), ( ibid. ibid. ibid. , §§ 40–42), Germany ( ibid. , § 43), Hungary ( ibid. , § 44), El Salvador ( , § 39), France ( ibid. , §§ 45–46), Israel ( ibid. , § 47), Italy ( Indonesia ( , § 48), Kenya ( ibid. , § 49), South Korea ibid. ( , § 50), Lebanon ( ibid. , § 51), Madagascar ( ibid. , § 52), Mali ( ibid. , § 53), Morocco ( ibid. , ibid. § 54), Netherlands ( ibid. , §§ 55–56), New Zealand ( ibid. , § 57), Nicaragua ( ibid. , § 58), Nigeria ( ibid. , §§ 59–62), Romania ( ibid. , § 63), Russia ( ibid. , § 64), Senegal ( ibid. , § 65), South Africa ( ibid. ibid. , § 67), Sweden ( ibid. , § 68), Switzerland ( ibid. , § 69), Togo ( ibid. , § 70), , § 66), Spain ( ibid. , §§ 71–72), United States ( , §§ 73–77) and Yugoslavia ( ibid. , § 78). United Kingdom ( ibid. 8 ibid. , § 80), Bosnia and Herzegovina ( ibid. , § 81), Colombia See, e.g., the legislation of Bangladesh ( ibid. , §§ 82–83), Croatia ( ibid. , § 84), El Salvador ( ibid. , § 85), Estonia ( ibid. , § 87), Ethiopia ( ibid. ( ibid. , § 89), Ireland ( ibid. , § 90), Italy ( ibid. , § 91), Lithuania ( ibid. , § 92), , § 88), Georgia ( ibid. , § 93), Norway ( ibid. , § 95), Poland ( ibid. , § 96), Romania ( ibid. , § 97), Slovenia Nicaragua ( ( ibid. , § 98), Spain ( ibid. , §§ 99–100), Tajikistan ( ibid. , § 101), Ukraine ( ibid. , § 102), Venezuela ( ibid. ibid. , § 105); see also the draft legislation of Argentina ( ibid. , , §§ 103–104) and Yugoslavia ( ibid. , § 94). ibid. § 79), El Salvador ( , § 86) and Nicaragua ( 9 See, e.g., the statements of China ( , § 109), Germany ( ibid. , § 113), Kuwait ( ibid. , §§ 118– ibid. 119), United Kingdom ( ibid. , § 126), United States ( ibid. , §§ 129–133), Venezuela ( ibid. , § 135) and Yugoslavia ( , §§ 136–137) and the reported practice of Rwanda ( ibid. , § 125). ibid. 10 1949 Geneva Conventions, common Article 3. This reasoning is applied, e.g., in the military manuals of Belgium ( ibid. , § 24), Colombia ( ibid. , § 32), El Salvador ( ibid. , § 39), Israel ( ibid. , § 47), South Africa ( ibid. , § 66) and Spain ( ibid. , § 67). 11 Additional Protocol II, Article 9(1) (adopted by consensus) ( ibid. , § 13).

142 Rule 25 81 12 In addi- law” constitutes a war crime in non-international armed conflicts. tion, this rule is contained in other instruments pertaining also to non- 13 international armed conflicts. Respect for and protection of medical personnel is included in military man- uals which are applicable in or have been applied in non-international armed 14 conflicts. It is an offence under the legislation of a large number of States 15 to violate this rule in any armed conflict. The rule has also been invoked in 16 official statements relating to non-international armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged attacks against medical personnel 17 have generally been condemned by States. International organisations have also condemned violations of this rule, for example, in the context of the con- 18 flicts in Burundi, Chechnya, El Salvador and the former Yugoslavia. The ICRC has called upon parties to both international and non-international armed con- 19 flicts to respect this rule. Definition of medical personnel The term “medical personnel” refers to personnel assigned, by a party to the conflict, exclusively to the search for, collection, transportation, diagnosis or treatment, including first-aid treatment, of the wounded, sick and shipwrecked, and the prevention of disease, to the administration of medical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary. The term medical personnel includes: 12 , § 832). ICC Statute, Article 8(2)(e)(ii) ( ibid. 13 See, e.g., Hague Statement on Respect for Humanitarian Principles ( ibid. , § 17). 14 ibid. , § 20), Australia ( ibid. See, e.g., the military manuals of Argentina ( ibid. , , §§ 21–22), Benin ( § 25), Bosnia and Herzegovina ( , § 26), Cameroon ( ibid. , § 29), Canada ( ibid. , §§ 30–31), ibid. ibid. ibid. , §§ 35–36), Ecuador ( ibid. , § 38), El Salvador ( ibid. , Colombia ( , §§ 32–33), Croatia ( ibid. , § 42), Germany ( ibid. , § 43), Hungary ( ibid. , § 44), Italy ( ibid. , § 48), Kenya § 39), France ( ( ibid. ibid. , § 50), Lebanon ( ibid. , § 51), Madagascar ( ibid. , § 52), Netherlands , § 49), South Korea ( ( , § 55), New Zealand ( ibid. , § 57), Nigeria ( ibid. , §§ 60–62), Russia ( ibid. , § 64), South Africa ibid. ( ibid. , § 66), Spain ( ibid. , § 67) and Togo ( ibid. , § 70). 15 See, e.g., the legislation of Bangladesh ( , § 80), Bosnia and Herzegovina ( ibid. , § 81), Colombia ibid. ibid. ibid. , § 84), El Salvador ( ibid. , § 85), Estonia ( ibid. , § 87), Ethiopia ( , §§ 82–83), Croatia ( ibid. , § 88), Georgia ( ibid. , § 89), Ireland ( ibid. , § 90), Lithuania ( ibid. , § 92), Norway ( ibid. ( , § 95), Poland ( , § 96), Slovenia ( ibid. , § 98), Spain ( ibid. , §§ 99–100), Tajikistan ( ibid. ibid. , § 101), Ukraine ( ibid. , § 102), Venezuela ( ibid. , §§ 103–104) and Yugoslavia ( ibid. , § 105); see also the legislation of Italy ( ibid. , § 91), Nicaragua ( ibid. , § 93) and Romania ( ibid. , § 97), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( , § 79), El Salvador ( ibid. , § 86) and Nicaragua ( ibid. , § 94). ibid. 16 See, e.g., the practice of the Philippines ( , § 123), United States ( ibid. , § 132), Venezuela ibid. ( , § 135) and Yugoslavia ( ibid. , §§ 136 and 137). ibid. 17 See, e.g., the statements of the United States ( ibid. , § 132), Venezuela ( ibid. , § 135) and Yugoslavia ( , § 137). ibid. 18 See, e.g., UN General Assembly, Res. 39/119 ( ibid. , § 140), Res. 40/139 ( ibid. , § 141) and Res. 41/157 ( ibid. , § 141); UN Commission on Human Rights, Res. 1987/51 ( ibid. , § 142); OSCE, Chairman in Office, Press Release 86/96 ( ibid. , § 149). 19 See, e.g., the practice of the ICRC ( ibid. , §§ 156–158, 160–164 and 166–172).

143 82 medical and religious personnel and objects (i) medical personnel of a party to the conflict, whether military or civilian, including those described in the First and Second Geneva Conventions, and those assigned to civil defence organisations; (ii) medical personnel of National Red Cross or Red Crescent Societies and other voluntary aid societies duly recognised and authorised by a party to the conflict, including the ICRC; (iii) medical personnel made available to a party to the conflict for humanitarian purposes by a neutral or other State which is not a party to the conflict; by a recognised and authorised aid society of such a State; or by an impartial international humanitarian organisation. This definition is set out in Article 8(c) of Additional Protocol I and is widely 20 used in State practice. The essence of the definition is that medical personnel have to be exclusively assigned to medical duties in order to enjoy the specific protection to which they are entitled. If the medical assignment is permanent, respect and protection are due at all times. If the medical assignment is only temporary, respect and protection are due only during the time of that assign- ment. Only medical personnel assigned to medical duties by a party to the conflict enjoy protected status. Other persons performing medical duties enjoy protection against attack as civilians, as long as they do not take a direct part in hostilities (see Rule 6). Such persons are not medical personnel and as a result they have no right to display the distinctive emblems. Canada’s Code of Conduct thus explains that: eres (Doctors Without Borders) edecins Sans Fronti NGOs such as CARE and M ́ ` might wear other recognizable symbols. The symbols used by CARE, MSF and other NGOs do not benefit from international legal protection, although their work in favour of the victims of armed conflict must be respected. Upon recognition that 21 they are providing care to the sick and wounded, NGOs are also to be respected. The term “military medical personnel” refers to medical personnel who are members of the armed forces. The term “civilian medical personnel” refers to medical personnel who are not members of the armed forces but who have been assigned by a party to the conflict exclusively to medical tasks. The same general definition was originally included by consensus in the draft of Additional Protocol II but was dropped at the last moment as part of a pack- 22 age aimed at the adoption of a simplified text. As a result, Additional Protocol II does not contain a definition of medical personnel and the term medical per- sonnel, as used in non-international armed conflicts, may be understood in the 23 same sense as that defined in Additional Protocol I. It can be inferred from 20 Additional Protocol I, Article 8(c) (adopted by consensus) ( ibid. , § 11). 21 Canada, Code of Conduct ( ibid. , § 31). 22 Draft Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols, Article 11(f) ( ibid. , § 14). 23 See the declaration to this effect by the United States ( ibid. , § 15) and the practice at the Diplo- matic Conference leading to the adoption of the Additional Protocols ( ibid. , § 150); see also Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, §§ 4661–4665.

144 Rule 25 83 the definition initially put forward in the draft of Additional Protocol II and the negotiations at the Diplomatic Conference leading to the adoption of the Additional Protocols that “medical personnel” means those persons assigned, by a party to the conflict, exclusively to the search for, collection, transporta- tion, diagnosis or treatment, including first-aid treatment, of the wounded, sick and shipwrecked, and the prevention of disease, to the administration of med- ical units or to the operation or administration of medical transports. Such assignments may be either permanent or temporary. The term medical person- nel includes: (i) medical personnel of a party to the conflict, whether military or civilian, including those assigned to medical tasks of civil defence; (ii) medical personnel of Red Cross or Red Crescent organisations recognised and authorised by a party to the conflict; (iii) medical personnel of other aid societies recognised and authorised by a party to the conflict and located within the territory of the State where the armed conflict is taking place. The negotiations at the Diplomatic Conference leading to the adoption of the Additional Protocols indicate that, owing to the specific nature of non- international armed conflicts, the above examples differ in two respects from those listed for international armed conflicts. First, the term “Red Cross or Red Crescent organisations” was used in order “to cover not only assistance provided on the Government side but also already existing Red Cross groups or branches on the side opposing the Government and even improvised organiza- 24 tions which had come into existence only during the conflict”. It should be noted in this respect that the term “Red Cross (Red Crescent, Red Lion and Sun) 25 organizations” is also used in Article 18 of Additional Protocol II. Secondly, the drafting committee had deemed it necessary to specify that aid societies other than Red Cross organisations must be located within the territory of the State where the armed conflict is taking place “in order to avoid the situation of an obscure private group from outside the country establishing itself as an 26 aid society within the territory and being recognized by the rebels”. Respect for and protection of medical personnel State practice contains the following specifications with respect to the mean- ing of the term “respect and protection”. According to the UK Military Manual and US Field Manual, the term “respect and protection” means that medical 24 CDDH, Official Records , Vol. XI, CDDH/II/SR.40, 20 March 1975, pp. 430–431, § 9; see also Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 4666. 25 Additional Protocol II, Article 18(1) (adopted by consensus). 26 CDDH, Report of the Drafting Committee (cited in Vol. II, Ch. 7, § 150); see also Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 4667.

145 84 medical and religious personnel and objects personnel “must not knowingly be attacked, fired upon, or unnecessarily pre- 27 vented from discharging their proper functions”. Germany’s Military Man- 28 ual and Switzerland’s Basic Military Manual contain a similar understanding. Spain’s LOAC Manual states that protection includes the duty to defend, assist 29 and support medical personnel when needed. The military manuals of Benin, Croatia, Madagascar, Nigeria and Togo state that medical personnel may not be attacked, and must be allowed to carry out their tasks as long as the tacti- 30 cal situation permits. Additional Protocol I also requires that “if needed, all available help shall be afforded to civilian medical personnel in an area where 31 civilian medical services are disrupted by reason of combat activity”. Addi- tional Protocol II requires that medical personnel “be granted all available help 32 for the performance of their duties”. The principle that medical personnel must not be punished for providing medical assistance is the subject of Rule 26. Loss of protection of medical personnel Military manuals and national legislation emphasise that medical personnel who engage in hostile acts lose the specific protection to which they are enti- 33 This exception is linked to the requirement that such personnel be exclu- tled. assigned to medical duties for them to be accorded respect and protection. sively Also, under the protection regime – which constitutes a corollary of the duty to care for the wounded and sick – specific protection is due because the wounded and sick are being cared for. Spain’s LOAC Manual explains that: It must be underlined that the protection of medical personnel is not a personal privilege but rather a corollary of the respect and protection due to the wounded and sick, who must be treated humanely in all circumstances . . . Medical personnel lose the special protection to which they are entitled if they commit acts of hostility. Such behaviour might even constitute perfidy if in so doing they take advantage of 34 their medical position and the distinctive emblems. Whereas the First Geneva Convention and Additional Protocol I provide for the loss of protection of medical units and transports in case they are used to commit, “outside their humanitarian function, acts harmful to the enemy”, 27 United Kingdom, Military Manual Field Manual (cited in Vol. II, Ch. 7, § 71); United States, ( ibid. , § 73). 28 Germany, Military Manual ( ibid. , § 43); Switzerland, Basic Military Manual ( ibid. , § 69). 29 Spain, ( ibid. , § 67). LOAC Manual 30 See the military manuals of Benin ( , § 25), Croatia ( ibid. , § 35), Madagascar ( ibid. , § 52), ibid. ibid. Nigeria ( ibid. , § 70). , §§ 60 and 62) and Togo ( 31 Additional Protocol I, Article 15(2) (adopted by consensus). 32 Additional Protocol II, Article 9(1) (adopted by consensus) (cited in Vol. II, Ch. 7, § 13). 33 See, e.g., the military manuals of Australia ( ibid. , §§ 187–188), Israel ( ibid. , § 47), Netherlands ( , § 200), Spain ( ibid. , §§ 67 and 203) and United States ( ibid. , §§ 208 and 210) and the ibid. legislation of Italy ( ibid. , § 91), Nicaragua ( ibid. , § 93) and Spain ( ibid. , § 99). 34 Spain, LOAC Manual ( ibid. , § 67).

146 Rule 25 85 Additional Protocol II provides for the loss of protection in case they are used 35 to commit “hostile acts, outside their humanitarian function”. According to the Commentary on the Additional Protocols, the meaning of both terms is the 36 same. Although these provisions specifically apply to medical units, the rule on loss of protection contained therein can be applied by analogy to medical personnel. In general, taking a direct part in hostilities, in violation of the principle of strict neutrality and outside the humanitarian function of medical personnel, is considered an act harmful to the enemy. This means that if medical teams are incorporated into combat units and their medical personnel bear arms and take a direct part in hostilities, they are not entitled to protection. However, neither the mere caring for enemy wounded and sick military personnel nor the sole wearing of enemy military uniforms or bearing of its insignia can be considered a hostile act. As explained below, the equipment of medical person- nel with small arms to defend themselves or their patients and the use of such arms for this purpose do not lead to loss of protection. Furthermore, in anal- ogous application of the similar rule applying to medical units, it is not to be considered a hostile act if medical personnel are escorted by military personnel or such personnel are present or if the medical personnel are in possession of small arms and ammunition taken from their patients and not yet handed over to the proper service. Equipment of medical personnel with light individual weapons State practice indicates that the protected status of medical personnel does not cease if they are equipped with light individual weapons solely to defend their patients or themselves against acts of violence, for example, against marauders. If they use such weapons in combat against enemy forces acting in conformity with the law of war, notably to resist capture, they forfeit their protection. This interpretation was first set out in the 1906 Geneva Convention and 37 repeated in the 1929 Geneva Convention. It is now codified in the First 38 Geneva Convention and Additional Protocol I. It was also included by con- sensus in the draft of Additional Protocol II but dropped at the last moment as 39 part of a package aimed at the adoption of a simplified text. It is clear that in practice protection of medical personnel against violence will be as important 35 ibid. , § 586); Additional Protocol I, Article 13 (adopted by First Geneva Convention, Article 21 ( ibid. , § 589); Additional Protocol II, Article 11 (adopted by consensus) ( ibid. , § 590). consensus) ( 36 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, §§ 4720–4721. 37 1906 Geneva Convention, Article 8(1) (cited in Vol. II, Ch. 7, § 180); 1929 Geneva Convention, Article 8(1) ( ibid. , § 181). 38 First Geneva Convention, Article 22(1) ( ibid. , § 182); Additional Protocol I, Article 13(2)(a) (adopted by consensus) ( ibid. , § 183). 39 Draft Additional Protocol II adopted by Committee III of the Diplomatic Conference leading to the adoption of the Additional Protocols, Articles 17(2) and (3)(a) ( ibid. , § 184).

147 86 medical and religious personnel and objects in situations of non-international armed conflict as in those of international armed conflict. In addition, at the Diplomatic Conference leading to the adop- tion of the Additional Protocols, the USSR stated that this rule was necessary, even in non-international armed conflicts, for medical personnel who disarmed a wounded soldier would otherwise forfeit their right to protection, unless they 40 threw away the weapon. Numerous military manuals specify that the carrying of light individual 41 weapons does not deprive medical personnel of their protected status. Accord- ing to Germany’s Military Manual, such “individual weapons” are pistols, sub- 42 machine guns and rifles. The Military Manual of the Netherlands provides the same interpretation of the term and adds that it excludes machine guns or other weapons that have to be handled by more than one person, weapons intended for use against objects, such as missile launchers and other anti-tank 43 weapons, and fragmentation hand grenades and the like. These understand- ings are based on the discussions at the Diplomatic Conference leading to the 44 adoption of the Additional Protocols. At the Diplomatic Conference leading to the adoption of the Additional Pro- tocols, the United States agreed that the carrying of arms by civilian medical personnel should not be considered as an act harmful to the enemy, “but in occupied territories or in areas in which fighting was taking place, the right of 45 the party in control of the area to disarm such personnel should be reserved”. Rule 26. Punishing a person for performing medical duties compatible with medical ethics or compelling a person engaged in medical activities to perform acts contrary to medical ethics is prohibited. Practice Volume II, Chapter 7, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. 40 See the statement of the USSR at the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , § 222). 41 See, e.g., the military manuals of Argentina ( ibid. , § 186), Australia ( ibid. , §§ 187–188), Belgium ( ibid. , §§ 189–190), Benin ( ibid. , § 191), Cameroon ( ibid. , § 192), Canada ( ibid. , §§ 193–194), Ecuador ( ibid. ibid. , § 196), Germany ( ibid. , § 197), Kenya ( ibid. , § 198), Nether- , § 195), France ( ibid. , § 201), South Africa ( ibid. lands ( ibid. , § 202), Spain ( ibid. , § 203), , §§ 199–200), Nigeria ( ibid. , § 204), Togo ( ibid. , § 205), United Kingdom ( ibid. , §§ 206–207), United States Switzerland ( ( ibid. , §§ 208–211) and Yugoslavia ( ibid. , § 212). 42 43 Military Manual ( ibid. , § 197). ibid. Netherlands, Military Manual ( Germany, , § 199). 44 See Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Addi- tional Protocols , ICRC, Geneva, 1987, § 563. 45 See United States, Statement at the Diplomatic Conference leading to the adoption of the Addi- tional Protocols (cited in Vol. II, Ch. 7, § 224).

148 Rule 26 87 Medical ethics This rule is codified in Article 16 of Additional Protocol I and Article 10 of 46 Additional Protocol II, to which no reservations have been made. The rule is also set forth in military manuals, including manuals which are 47 applicable in or have been applied in non-international armed conflicts. It is 48 supported by official statements. Violations of this rule inherently constitute violations of the right of the wounded and sick to protection and care (see Rules 110–111) and also of the obligation to respect and protect medical personnel (see Rule 25). No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged prosecution of medical personnel 49 has been condemned by States as a violation of humanitarian law. It has also 50 been condemned by the United Nations. This prohibition is further endorsed 51 by the Council of Europe and the World Medical Association. In addition to acts contrary to “medical ethics”, both Article 16 of Additional Protocol I and Article 10 of Additional Protocol II prohibit compelling persons engaged in medical activities to perform acts contrary to “other medical rules 52 designed for the benefit of the wounded and sick”. No further specification was found in State practice as to the content of these other rules, over and above the rules of medical ethics. While this wording was added at the Diplomatic Conference leading to the adoption of the Additional Protocols, “no attempt 53 was made to list these various rules”. The spirit of this provision seems to be aimed at a prohibition of “compulsion which might be exerted on medical personnel to conduct themselves in a way that is contrary to their patients’ 54 interests”. In that respect, this rule is a corollary of the fundamental guarantee not to subject anyone to mutilation, medical or scientific experiments or any other medical procedure not indicated by his or her state of health and not consistent with generally accepted medical standards (see Rule 92). 46 Additional Protocol I, Article 16 (adopted by consensus) ( ibid. , § 232); Additional Protocol II, Article 10 (adopted by consensus) ( ibid. , § 233). 47 See, e.g., the military manuals of Argentina ( ibid. , § 235), Australia ( ibid. , § 236), Canada ( ibid. , § 237), Netherlands ( ibid. ibid. , § 239), Senegal ( ibid. , § 240), Spain ( ibid. , , § 238), New Zealand ( ibid. § 241) and Yugoslavia ( , § 242). 48 ibid. , § 247). See, e.g., the statement of the United Kingdom ( 49 See, e.g., the statement of the United States ( , § 249). ibid. 50 See, e.g., UN General Assembly, Res. 44/165 ( , § 250); UN Commission on Human Rights, ibid. Res. 1990/77 ( ibid. , § 251). 51 Council of Europe, Parliamentary Assembly, Res. 904 ( ibid. , § 253); World Medical Association, ibid. , Rules Governing the Care of the Sick and Wounded, Particularly in Time of Conflict ( § 257). 52 Additional Protocol I, Article 16 (adopted by consensus) ( ibid. , § 232); Additional Protocol II, Article 10 (adopted by consensus) ( ibid. , § 233). 53 Commentary on the Additional Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Protocols , ICRC, Geneva, 1987, § 669. An example of such a rule could be the prohibition of doctors cooperating in medical procedures undertaken by personnel who are not officially qualified such as, e.g., medical students, ibid. , § 4693. 54 Ibid. , § 669.

149 88 medical and religious personnel and objects Medical secrecy At the Diplomatic Conference leading to the adoption of the Additional Pro- tocols, Cuba, Denmark, France, the Netherlands and Norway opposed the pos- sibility that under national law medical personnel may be obliged to report 55 wounds caused by firearms during armed conflict. In the end, however, nei- ther Additional Protocol I nor Additional Protocol II prohibits this. So, while no one may be punished for providing medical treatment, it remains possi- ble to impose a sanction on persons for withholding information in cases in which they are legally obliged to divulge such information. While some States have adopted a system of complete confidentiality with respect to medical information contained in a medical file, as well as the reporting of particu- lar wounds, there is no rule in international law which prohibits a State from adopting legislation making it compulsory to provide information, including, for example, concerning communicable diseases, and a number of States have 56 done so. Rule 27. Religious personnel exclusively assigned to religious duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy. Practice Volume II, Chapter 7, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The obligation to respect and protect religious personnel goes back to the 1864 Geneva Convention and was repeated in the subsequent Geneva Conventions 57 of 1906 and 1929. It is now set forth in Article 24 of the First Geneva Conven- 58 tion and Article 36 of the Second Geneva Convention. Its scope was expanded in Article 15 of Additional Protocol I to cover civilian religious personnel in 55 See the practice of Cuba (cited in Vol. II, Ch. 7, § 270), Denmark ( , §§ 271–272), France ibid. ibid. ibid. ibid. , § 274) and Norway ( ( , § 275). , § 273), Netherlands ( 56 See, e.g., Yugoslavia, YPA Military Manual , referring to Yugoslav regulations ( ibid. , § 266) and Philippines, Executive Order 212 ( ibid. , § 276). 57 ibid. , § 287); 1906 Geneva Convention, Article 9 ( ibid. , 1864 Geneva Convention, Article 2 ( § 288); 1929 Geneva Convention, Article 9 ( ibid. , § 289). 58 First Geneva Convention, Article 24 ( ibid. , § 290); Second Geneva Convention, Article 36 ( ibid. , § 291).

150 Rule 27 89 59 This extension addition to military religious personnel in all circumstances. is widely supported in State practice, which generally refers to religious per- sonnel without distinguishing between military or civilian religious person- 60 nel. It is also supported by States not, or not at the time, party to Additional 61 Protocol I. Under the Statute of the International Criminal Court, “intentionally direct- ing attacks against...personnel using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in 62 international armed conflicts. This crime is relevant to religious personnel because they are entitled to use the distinctive emblems. Numerous military manuals require respect for and protection of religious 63 personnel. It is an offence under the legislation of many States to violate this 64 65 rule. The rule is also supported by official statements. Non-international armed conflicts The obligation to respect and protect religious personnel is set forth in 66 Article 9 of Additional Protocol II, to which no reservations have been made. In addition, under the Statute of the International Criminal Court, “intention- ally directing attacks against . . . personnel using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war 67 crime in non-international armed conflicts. 59 ibid. Additional Protocol I, Article 15 (adopted by consensus) ( , § 293). 60 See, e.g., the military manuals of Argentina ( ibid. , § 300), Australia ( ibid. , §§ 301–302), Belgium ( ibid. , § 305), Cameroon ( ibid. , § 306), Canada ( ibid. , § 307), Croatia ( ibid. , ibid. , § 303), Benin ( ibid. , § 310), France ( ibid. , §§ 311–312), Hungary ( § 308), El Salvador ( , § 314), Italy ( ibid. , ibid. § 318), Madagascar ( , § 321), Netherlands ( ibid. , §§ 322–323), South Africa ( ibid. , § 328), ibid. ibid. , § 329), Switzerland ( , § 330), Togo ( ibid. , § 331) and United States ( ibid. , § 336); Spain ( ibid. ibid. ibid. , § 342), Georgia ( ibid. , § 343), Ireland ( ibid. , the legislation of Croatia ( , § 340), Estonia ( ibid. , § 346), Norway ( ibid. , § 348), Poland ( ibid. § 344), Nicaragua ( ibid. , § 350), , § 349), Slovenia ( Spain ( , §§ 351–352), Tajikistan ( ibid. , § 353) and Yugoslavia ( ibid. , § 354); see also the draft ibid. ibid. ibid. legislation of Argentina ( , § 341) and Nicaragua ( ibid. , § 347) and , § 338), El Salvador ( ibid. , § 361) and Yugoslavia ( ibid. , § 363). the statements of the United States ( 61 See, e.g., the military manuals of France ( ibid. , § 311) and United States ( ibid. , § 336). 62 ICC Statute, Article 8(2)(b)(xxiv) ( , § 832). ibid. 63 See, e.g., the military manuals of Argentina ( ibid. , §§ 301–302), Belgium ibid. , § 300), Australia ( , §§ 303–304), Benin ( , § 307), Croatia , § 305), Cameroon ( ibid. , § 306), Canada ( ibid. ibid. ( ibid. ibid. ibid. , § 309), El Salvador ( ibid. , § 310), France ( ibid. , §§ 311–312), Germany ( , § 308), Ecuador ( ibid. ( ibid. , § 314), Indonesia ( ibid. , §§ 315–316), Israel ( ibid. , § 317), Italy ( ibid. , , § 313), Hungary ( § 318), Kenya ( , § 319), South Korea ( ibid. , § 320), Madagascar ( ibid. , § 321), Netherlands ibid. ( , §§ 322–323), Nicaragua ( ibid. , § 325), Nigeria ( ibid. , §§ 326–327), South Africa ( ibid. , ibid. § 328), Spain ( ibid. , § 329), Switzerland ( ibid. , § 330), Togo ( ibid. , § 331), United Kingdom ( ibid. , §§ 332–333), United States ( ibid. ibid. , § 337). , §§ 334–336) and Yugoslavia ( 64 See, e.g., the legislation of Bangladesh ( , § 339), Croatia ( ibid. , § 340), Estonia ( ibid. , § 342), ibid. Georgia ( , § 343), Ireland ( ibid. , § 344), Nicaragua ( ibid. , § 346), Norway ( ibid. , § 348), ibid. Poland ( ibid. , § 349), Slovenia ( ibid. , § 350), Spain ( ibid. , §§ 351–352), Tajikistan ( ibid. , § 353), Yugoslavia ( ibid. ibid. , § 338), El Salvador , § 354); see also the draft legislation of Argentina ( ( , § 341) and Nicaragua ( ibid. , § 347). ibid. 65 See, e.g., the statements of the United States ( ibid. , § 361) and Yugoslavia ( ibid. , § 363) and the reported practice of Israel ( , § 358) and Rwanda ( ibid. , § 360). ibid. 66 Additional Protocol II, Article 9 (adopted by consensus) ( ibid. , § 295). 67 ICC Statute, Article 8(2)(e)(ii) ( ibid. , § 832).

151 90 medical and religious personnel and objects The protection of religious personnel is also included in military manu- als which are applicable in or have been applied in non-international armed 68 conflicts. It is an offence under the legislation of many States to violate this 69 rule in any armed conflict. There is also some other practice supporting the 70 rule specifically in non-international armed conflicts. The ICRC has called for respect for and protection of religious personnel on several occasions, for example, in 1994 in the context of the conflict in 71 Angola. No official contrary practice was found with respect to either international or non-international armed conflicts. Definition of religious personnel The term “religious personnel” refers to personnel, whether military or civil- ian, who are exclusively engaged in the work of their ministry and attached to a party to the conflict, to its medical units or transports or to a civil defence organisation. Such assignment may be either permanent or temporary. This 72 It is widely used definition is based on Article 8(d) of Additional Protocol I. 73 in State practice. In the absence of a definition of religious personnel in Additional Protocol II, this term may be understood as applying in the same 74 sense in non-international armed conflicts. The Netherlands has stated that 75 “humanist counsellors” belong to religious personnel. Other persons per- forming religious functions enjoy the protected status of civilians, as long as 68 See, e.g., the military manuals of Argentina ( ibid. , § 300), Australia ( ibid. , §§ 301–302), Benin ibid. , § 305), Cameroon ( ibid. ( ibid. , § 307), Croatia ( ibid. , § 308), Ecuador , § 306), Canada ( ( , § 309), El Salvador ( ibid. , § 310), France ( ibid. , § 312), Germany ( ibid. , § 313), Hun- ibid. ibid. ibid. , § 318), Kenya ( ibid. , § 319), South Korea ( ibid. , § 320), Mada- gary ( , § 314), Italy ( ibid. , § 321), Netherlands ( ibid. , § 322), New Zealand ( ibid. gascar ( ibid. , , § 324), Nigeria ( § 326), South Africa ( , § 328), Spain ( ibid. , § 329), Togo ( ibid. ibid. , § 331) and Yugoslavia ( ibid. , § 337). 69 See, e.g., the legislation of Croatia ( ibid. , § 340), Estonia ( ibid. , § 342), Georgia ( ibid. , § 343), Ireland ( ibid. ibid. , § 346), Norway ( ibid. , § 438), Poland ( ibid. , § 349), Slovenia , § 344), Nicaragua ( , § 354); ibid. , §§ 351–352), Tajikistan ( ibid. , § 353) and Yugoslavia ( ibid. ibid. ( , § 350), Spain ( ibid. , § 345), the application of which is not excluded in time of see also the legislation of Italy ( ibid. , § 338), El Salvador non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 341) and Nicaragua ( ibid. , § 347). ( 70 See, e.g., the practice of Yugoslavia ( , § 363) and the reported practice of Rwanda ( ibid. , ibid. § 360). 71 See ICRC, Memorandum on Respect for International Humanitarian Law in Angola ( ibid. , § 373). 72 Additional Protocol I, Article 8(d) ( ibid. , § 292). 73 See, e.g., the practice of Australia ( , § 302), Croatia ( ibid. , § 308), France ( ibid. , §§ 311–312), ibid. Italy ( , § 318), Madagascar ( ibid. , § 321), Nicaragua ( ibid. , § 346), South Africa ( ibid. , § 328), ibid. Spain ( ibid. , §§ 329 and 351) and Togo ( ibid. , § 331). 74 ibid. , § 296); see also Yves Sandoz, See, e.g., the declaration to this effect by the United States ( Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, §§ 4662–4663, referring to the discussions at the CDDH, Official Records , Vol. XI, CDDH/II/SR.31, 6 March 1975, pp. 317–326. 75 Netherlands, Lower House of Parliament, Explanatory memorandum on the ratification of the Additional Protocols (cited in Vol. II, Ch. 7, § 294) and Military Manual ( ibid. , § 322).

152 Rule 28 91 they do not take a direct part in hostilities. As civilians, they may not, however, display the distinctive emblems. Respect for and protection of religious personnel State practice generally indicates that religious personnel enjoy the same priv- 76 ileges as permanent medical personnel. Hence, the meaning of the terms “respect and protection” as interpreted in the context of medical personnel (see commentary to Rule 25) applies mutatis mutandis to religious personnel. Loss of protection of religious personnel Based on the same reasoning, the interpretation of the exception of loss of protection of medical personnel in case of engagement in acts harmful to the mutatis mutandis enemy (or hostile acts) (see commentary to Rule 25) applies to religious personnel. As with medical personnel, only religious personnel exclusively assigned to religious duties are protected. Equipment of religious personnel with light individual weapons Based on the same reasoning, the principle that medical personnel do not lose their protection if they are equipped with light individual weapons and that they may use these weapons in their own defence or in that of the wounded, sick and mutatis shipwrecked in their care (see commentary to Rule 25) would apply to religious personnel. This is explicitly recognised by Germany’s mutandis Military Manual, even though it adds that chaplains in the German army are 77 not armed. The UK LOAC Manual, meanwhile, states that chaplains attached 78 to the armed forces may not be armed. No further specifications in practice were found. Rule 28. Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy. Practice Volume II, Chapter 7, Section D. 76 See, e.g., the practice of Australia ( , § 302), Belgium ( ibid. , § 303), Ecuador ( ibid. , § 309), ibid. Hungary ( , § 314), Israel ( ibid. , § 317), Kenya ( ibid. , § 319), Netherlands ( ibid. , § 323), Spain ibid. ( ibid. , § 329), United Kingdom ( ibid. , § 332), Yugoslavia ( ibid. , § 337), United States ( ibid. , § 361) and Yugoslavia ( , § 363). ibid. 77 78 Military Manual ( , § 333). , § 313). Germany, United Kingdom, LOAC Manual ( ibid. ibid.

153 92 medical and religious personnel and objects Summary State practice establishes this rule as a norm of customary interna- tional law applicable in both international and non-international armed conflicts. International armed conflicts This rule goes back to the protection of “hospitals and places where the sick 79 and wounded are collected” in the Hague Regulations. It is set forth in the 80 First and Fourth Geneva Conventions. Its scope was expanded in Additional Protocol I to cover civilian medical units in addition to military medical units in 81 all circumstances. This extension is widely supported in State practice, which generally refers to medical units without distinguishing between military or 82 civilian units. It is also supported by States not, or not at the time, party to 83 Additional Protocol I. Under the Statute of the International Criminal Court, intentionally direct- ing attacks against “hospitals and places where the sick and the wounded are collected, provided they are not military objectives” and against “medical units . . . using the distinctive emblems of the Geneva Conventions in confor- mity with international law” constitutes a war crime in international armed 84 conflicts. 79 , §§ 377–378). 1899 and 1907 Hague Regulations, Article 27 ( ibid. 80 ibid. ibid. , First Geneva Convention, Article 19 ( , § 379); Fourth Geneva Convention, Article 18 ( § 380). 81 Additional Protocol I, Article 12 (adopted by consensus) ( ibid. , § 381). 82 See, e.g., the military manuals of Belgium ( ibid ., § 396), Burkina Faso ( ibid ., § 400), Cameroon ( ., § 401), Canada ( ibid ., § 403), Colombia ( ibid ., §§ 404–405), Dominican Republic ( ibid ., ibid § 409), Ecuador ( ., § 410), Germany ( ibid ., §§ 414–415), Hungary ( ibid ., § 416), Israel ( ibid ., ibid ibid ibid ., § 424), Netherlands ( ibid ., §§ 428–429), Nigeria ( ibid ., § 417), Italy ( ., § 419), Lebanon ( ibid ., § 435), Russia ( ibid ., § 436), Senegal ( ibid ., §§ 437–438) and United § 434), Romania ( States ( ibid ibid ., 456), Azerbaijan ( ibid ., § 457), ., §§ 448–451); the legislation of Australia ( ibid Canada ( ibid ., § 462), China ( ibid ., § 463), Colombia ( ibid ., § 464), Congo ., § 461), Chile ( ( ibid ., § 465), Cuba ( ibid ., § 467), Dominican Republic ( ibid ., § 468), El Salvador ( ibid ., § 469), Estonia ( ibid ibid ., § 472), Georgia ( ibid ., § 473), Germany ( ibid ., § 474), ., § 471), Ethiopia ( ibid ibid ., § 476), Mexico ( ibid ., § 480), Netherlands ( ibid ., §§ 481– Guatemala ( ., § 475), Iraq ( ibid ., § 483), Nicaragua ( ibid ., § 484), Peru ( ibid ., § 487), Philippines ( ibid ., 482), New Zealand ( § 488), Poland ( ibid ibid ., § 490), Romania ( ibid ., § 491), Spain ( ibid ., § 493), ., § 489), Portugal ( Tajikistan ( ., § 495), Ukraine ( ibid ., § 497), United Kingdom ( ibid ., § 498), Uruguay ( ibid ., ibid § 500) and Venezuela ( ibid ., § 501); see also the draft legislation of Argentina ( ibid ., § 454), Burundi ( ibid ibid ., § 470), Nicaragua ( ibid ., § 485), Trinidad and Tobago ., § 460), El Salvador ( ibid ( ibid ., § 505), Canada ( ibid ., § 506), China ( ibid ., ., § 496), and the statements of Argentina ( §§ 507–508), Egypt ( ibid ., § 511), Finland ( ibid ., § 512), France ( ibid ., § 513), Hungary ( ibid ., § 515), Iraq ( ., § 517), United States ( ibid ., § 529) and Venezuela ( ibid ., § 530) ibid 83 See, e.g., the practice of France ( ibid. , § 412), Kenya ( ibid. , § 421), United Kingdom ( ibid. , §§ 445 and 524) and United States ( ibid. , § 527). 84 ICC Statute, Article 8(2)(b)(ix) ( ibid. , § 384).

154 Rule 28 93 85 Sweden’s IHL Manual This rule is contained in numerous military manuals. identifies the protection of medical units as set out in Article 12 of Additional Protocol I as a codification of a pre-existing rule of customary international 87 86 law. It is an offence under the legislation of many States to violate this rule. 88 The rule has been invoked in official statements. Non-international armed conflicts This rule is implicit in common Article 3 of the Geneva Conventions, which requires that the wounded and sick be collected and cared for, because the pro- tection of medical units is a subsidiary form of protection afforded to ensure that 89 the wounded and sick receive medical care. The rule that medical units must be respected and protected at all times, and must not be the object of attack, 90 is explicitly set forth in Additional Protocol II. In addition, under the Statute of the International Criminal Court, intentionally directing attacks against “hospitals and places where the sick and the wounded are collected, provided 85 See, e.g., the military manuals of Argentina ( ibid. , §§ 392–393), Australia ( ibid. , §§ 394–395), , §§ 396–397), Benin ( ibid. Belgium ( ibid. , § 399), Burkina ibid. , § 398), Bosnia and Herzegovina ( ibid. ibid. , § 401), Canada ( ibid. , §§ 402–403), Colombia ( ibid. , §§ 404– Faso ( , § 400), Cameroon ( , § 406), Croatia ( ibid. , §§ 407–408), Dominican Republic ( ibid. , § 409), Ecuador 405), Congo ( ibid. , § 410), France ( ibid. , §§ 411–413), Germany ( ibid. , §§ 414–415), Hungary ( ibid. , § 416), ( ibid. ibid. , §§ 417–418), Italy ( ibid. , §§ 419–420), Kenya ( ibid. , § 421), South Korea ( Israel ( , § 422), ibid. Lebanon ( , §§ 423–424), Madagascar ( ibid. , § 425), Mali ( ibid. , § 426), Morocco ( ibid. , § 427), ibid. ibid. , §§ 428–429), New Zealand ( , § 430), Nicaragua ( ibid. , § 431), Nigeria Netherlands ( ibid. , §§ 432–434), Romania ( ibid. , § 435), Russia ( ibid. , § 436), Senegal ( ibid. , §§ 437–438), ( ibid. ibid. , § 439), Spain ( ibid. , § 440), Sweden ( ibid. , § 441), Switzerland ( ibid. , § 442), South Africa ( ibid. , §§ 444–445), United States ( ibid. Togo ( ibid. , §§ 446–451) and , § 443), United Kingdom ( ibid. Yugoslavia ( , § 452). 86 Sweden, IHL Manual ( ibid. , § 441). 87 ibid. ibid. See, e.g., the legislation of Argentina ( , §§ 455–456), Azerbaijan , § 453), Australia ( ibid. , § 457), Bangladesh ( ( , § 458), Bosnia and Herzegovina ( ibid. , § 459), Canada ( ibid. , ibid. § 461), Chile ( ibid. , § 462), China ( ibid. , § 463), Colombia ( ibid. , § 464), Congo ( ibid. , § 465), Croatia ( ibid. ibid. , § 467), Dominican Republic ( ibid. , § 468), El Salvador ( ibid. , , § 466), Cuba ( ibid. , § 471), Ethiopia ( , § 472), Georgia ( ibid. , § 473), Germany ( ibid. , § 469), Estonia ( ibid. ibid. ibid. , § 476), Ireland ( ibid. , § 477), Italy ( ibid. , § 478), § 474), Guatemala ( , § 475), Iraq ( ibid. , § 479), Mexico ( ibid. , § 480), Netherlands ( ibid. , §§ 481–482), New Zealand Lithuania ( ibid. ibid. ( , § 484), Norway ( ibid. , § 486), Peru ( ibid. , § 487), Philippines , § 483), Nicaragua ( ibid. , § 490), Romania ( ibid. , § 489), Portugal ( ibid. ( ibid. , § 491), Slovenia ( ibid. , , § 488), Poland ( ibid. , § 493), Sweden ( ibid. , § 494), Tajikistan ( ibid. , § 495), Ukraine ( ibid. , § 497), § 492), Spain ( United Kingdom ( ibid. , § 498), United States ( ibid. , § 499), Uruguay ( ibid. , § 500), Venezuela ( ibid. ibid. , § 502); see also the draft legislation of Argentina ( ibid. , § 454), , § 501) and Yugoslavia ( ibid. , § 485) and Trinidad and Tobago ibid. , § 470), Nicaragua ( ibid. Burundi ( , § 460), El Salvador ( ( ibid. , § 496). 88 ibid. See, e.g., the statements of Argentina ( ibid. , § 506), China ( ibid. , §§ 507– , § 505), Canada ( 508), Egypt ( ibid. , §§ 510–511), Finland ( ibid. , § 512), France ( ibid. , § 513), Hungary ( ibid. , § 515), , § 523), United Iraq ( ibid. , § 521), Rwanda ( ibid. , § 522), Saudi Arabia ( ibid. , § 517), Norway ( ibid. States ( ibid. , §§ 525–529) and Venezuela ( ibid. , § 530); see also the reported practice of Israel ( ibid. , § 518). 89 ibid. , § 397), Colombia This reasoning is put forward, e.g., in the military manuals of Belgium ( ( ibid. , § 404), Israel ( ibid. , § 418) and Nicaragua ( ibid. , § 431). 90 Additional Protocol II, Article 11(1) (adopted by consensus) ( ibid. , § 382).

155 94 medical and religious personnel and objects they are not military objectives” and against “medical units...using the dis- tinctive emblems of the Geneva Conventions in conformity with interna- 91 tional law” constitutes a war crime in non-international armed conflicts. In addition, this rule is contained in other instruments pertaining also to non- 92 international armed conflicts. The protection of medical units is set forth in military manuals which are 93 applicable in or have been applied in non-international armed conflicts. It 94 is an offence under the legislation of many States to violate this rule. Fur- thermore, the rule is supported by a number of official statements made in the 95 context of non-international armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged attacks against medical units 96 have generally been condemned by States. They have also been condemned by international organisations, for example, in the context of the conflicts in Afghanistan, Burundi, El Salvador, Kampuchea, Korea, Rwanda, Somalia, Viet- 97 nam and the former Yugoslavia, between Iran and Iraq and in the Middle East. 91 ICC Statute, Article 8(2)(e)(ii) and (iv) ( ibid. , §§ 384 and 831). 92 See, e.g., Agreement on the Application of IHL between the Parties to the Conflict in Bosnia ibid. and Herzegovina ( , § 389). 93 ibid. ibid. , §§ 394–395), Benin See, e.g., the military manuals of Argentina ( , § 393), Australia ( , § 398), Bosnia and Herzegovina ( ibid. , § 399), Canada ( ibid. , §§ 402–403), Colombia ( ibid. , §§ 404–405), Croatia ( ibid. , §§ 407–408), Ecuador ( ibid. , § 410), Germany ( ibid. , §§ 414– ibid. ( ibid. , § 416), Italy ( ibid. , §§ 419–420), Kenya ( ibid. 415), Hungary ( ibid. , , § 421), South Korea ( § 422), Lebanon ( , §§ 423–424), Madagascar ( ibid. , § 425), Netherlands ( ibid. , § 428), ibid. ibid. , § 430), Nigeria ( , §§ 432–433), Russia ( ibid. , § 436), Senegal ( ibid. , New Zealand ( ibid. ibid. , § 439), Spain ( , § 440), Togo ( ibid. , § 443) and Yugoslavia ( ibid. , § 438), South Africa ( ibid. § 452). 94 ibid. , § 456), Azerbaijan ( ibid. , § 457), Bosnia and Herze- See, e.g., the legislation of Australia ( ibid. , § 459), Canada ( ibid. , § 461), Colombia ( ibid. , § 464), Congo ( ibid. , § 465), Croatia govina ( , ibid. ibid. , § 471), Ethiopia ( ( , § 472), Georgia ( ibid. , § 473), Germany ( ibid. , § 466), Estonia ( ibid. § 474), Ireland ( ibid. , § 477), Lithuania ( ibid. , § 479), Netherlands ( ibid. , § 482), New Zealand ( ibid. , § 483), Nicaragua ( ibid. , § 484), Norway ( ibid. , § 486), Poland ( ibid. , § 489), Portugal ( ibid. , § 490), Slovenia ( ibid. ibid. , § 493), Sweden ( ibid. , § 494), Tajikistan ( ibid. , § 495), , § 492), Spain ( ibid. , § 498), Venezuela ( , § 501) and Yugoslavia ( ibid. , § 502); see also the United Kingdom ( ibid. , § 453), Cuba ( ibid. , § 467), Guatemala ( ibid. , § 475), Italy ( ibid. , legislation of Argentina ( ibid. ibid. , § 487), Romania ( ibid. , § 491) and Uruguay ( ibid. , § 500), the application of § 478), Peru ( which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( , § 454), Burundi ( ibid. , § 460), El Salvador ( ibid. , § 470), Nicaragua ( ibid. , § 485) ibid. and Trinidad and Tobago ( ibid. , § 496). 95 See, e.g., the statements of Argentina ( ibid. ibid. , § 506), Finland ( ibid. , § 512), , § 505), Canada ( France ( ibid. , § 513), Hungary ( ibid. , § 515), Rwanda ( ibid. , § 522) and Venezuela ( ibid. , § 530). 96 See, e.g., the statements of Argentina ( , § 505), Canada ( ibid. , § 506), China ( ibid. , §§ 507– ibid. ibid. ibid. ibid. , § 512), France ( ibid. , § 513), Hungary ( 508), Egypt ( , 515), Iran , § 510), Finland ( , § 521), Rwanda ( ibid. ibid. , § 517), Norway ( ibid. ( ibid. , § 522), Saudi Arabia ( ibid. , , § 516), Iraq ( § 523), United States ( ibid. , § 525) and Venezuela ( ibid. , § 530). 97 ibid. , § 533), Res. 771 ( ibid. , § 534) and Res. 794 See, e.g., UN Security Council, Res. 467 ( ( ibid. , § 535); UN General Assembly, Res. 39/119 ( ibid. , § 537), Res. 40/139 ( ibid. , § 538) and Res. 41/157 ( ibid. , § 538); UN Commission on Human Rights, Res. 1983/5 ( ibid. , § 539), Res. 1987/51 ( ibid. , § 540) and Res. 1992/S-1/1 ( ibid. , § 542).

156 Rule 28 95 The ICRC has called upon parties to both international and non-international 98 armed conflicts to respect this rule. Definition of medical units The term “medical units” refers to establishments and other units, whether military or civilian, organised for medical purposes, be they fixed or mobile, permanent or temporary. The term includes, for example, hospitals and other similar units, blood transfusion centres, preventive medicine centres and insti- tutes, medical depots and the medical and pharmaceutical stores of such units. This definition, which builds upon Article 19 of the First Geneva Conven- tion and Article 18 of the Fourth Geneva Convention, is set out in Article 8(e) 100 99 of Additional Protocol I. In the absence It is widely used in State practice. of a definition of medical units in Additional Protocol II, this term may be understood as applying in the same sense in non-international armed 101 conflicts. While a lot of practice does not expressly require medical units to be recog- nised and authorised by one of the parties, some of it refers to the provisions of 102 103 Additional Protocol I, or does require such authorisation in another way. Unauthorised medical units must therefore be regarded as being protected according to the rules on the protection of civilian objects (see Chapter 2), but do not have the right to display the distinctive emblems. Criminal codes often require medical establishments to be properly marked 104 with the distinctive emblems. However, having regard to the principle that means of identification do not, of themselves, confer protected status but only facilitate identification, this can be of importance only for criminal 98 See the practice of the ICRC ( , §§ 554–556, 559–564 and 566–573). ibid. 99 Additional Protocol I, Article 8(e) (adopted by consensus). 100 ibid. See, e.g., the practice of Australia (cited in Vol. II, Ch. 7, § 395), Canada ( , § 402), Kenya ibid. , § 421), New Zealand ( ibid. ( ibid. , § 439), Spain ( ibid. , § 440), Romania , § 430), South Africa ( ( ibid. , § 491) and United States ( ibid. , § 383). 101 See the declaration to this effect by the United States ( , § 383); see also Yves Sandoz, ibid. Commentary on the Additional Protocols Christophe Swinarski, Bruno Zimmermann (eds.), , ICRC, Geneva, 1987, §§ 4711–4712. 102 Article 12(2) of Additional Protocol I requires that civilian medical units be “recognized and authorized by the competent authority of one of the Parties to the conflict” or that they be “recognized in conformity with” Article 9(2) of Additional Protocol I or with Article 27 of the First Geneva Convention, i.e., recognised by a neutral or other State not party to the conflict, by an aid society of such a State, or by an impartial international humanitarian organisation. 103 See, e.g., the practice of France (cited in Vol. II, Ch. 7, § 413), Ireland ( ibid. , § 477), Nigeria ( ibid. , § 433), Norway ( ibid. , § 486), Sweden ( ibid. , § 441) and United States ( ibid. , § 527). 104 ibid. , § 453), Azerbaijan ( ibid. , § 457), Chile ( ibid. , § 462), See, e.g., the legislation of Argentina ( Colombia ( ibid. , § 464), Dominican Republic ( ibid. , § 468), Germany ( ibid. , § 474), Peru ( ibid. , § 487) and Romania ( ibid. , § 491); see also the draft legislation of Argentina ( ibid. , § 454) and Nicaragua ( ibid. , § 485).

157 96 medical and religious personnel and objects responsibility in the event of an attack on a medical unit (see commentary to Rule 30). Respect for and protection of medical units State practice contains the following specifications with respect to the meaning of the terms “respect and protection”. According to Germany’s military man- uals, the terms “respect and protection” mean that medical units may not be 105 attacked and that their unhampered employment must be ensured. Switzer- land’s Basic Military Manual contains a similar understanding, specifying that “[medical units] shall not be attacked, nor harmed in any way, nor their functioning be impeded, even if they do not momentarily hold any wounded 106 and sick”. Similarly, the US Air Force Commander’s Handbook provides that medical units “should not be deliberately attacked, fired upon, or unnecessarily 107 prevented from performing their medical duties”. The military manuals of Benin, Nigeria, Senegal and Togo state that medical units must remain untouched and that armed persons may not enter them, but 108 that their content and actual use may be checked through an inspection. The First and Fourth Geneva Conventions and Additional Protocol I require that, as far as possible, medical units not be located in the vicinity of military 109 110 objectives. This requirement is repeated in numerous military manuals. Article 12(4) of Additional Protocol I further provides that medical units may under no circumstances be used in an attempt to shield military objectives 111 from attack. This requirement is explicitly subscribed to in the practice of 112 the Netherlands and the United States. Some military manuals stipulate that medical units may not be used for military purposes or to commit acts harmful 113 to the enemy. Other manuals consider that the improper use of privileged 114 buildings for military purposes is a war crime. 105 ibid. , §§ 414–415). See the military manuals of Germany ( 106 Switzerland, ibid. , § 442). Basic Military Manual ( 107 Air Force Commander’s Handbook United States, ibid. , § 448). ( 108 , § 438) and ibid. ibid. , § 433), Senegal ( See the military manuals of Benin ( , § 398), Nigeria ( ibid. Togo ( ibid. , § 443). 109 First Geneva Convention, Article 19 ( ibid. , § 379); Fourth Geneva Convention, Article 18 ( ibid. , § 380); Additional Protocol I, Article 12(4) (adopted by consensus) ( ibid. , § 381). 110 See, e.g., the military manuals of Argentina ( ibid. , § 403), Ecuador ( ibid. , ibid. , § 392), Canada ( , §§ 414–415), Netherlands ( ibid. , § 428), Nigeria ( ibid. , § 434), Russia § 410), Germany ( ibid. ibid. ( ibid. , § 442), United Kingdom ( ibid. , § 444), United States ( ibid. , , § 436), Switzerland ( §§ 446 and 451) and Yugoslavia ( ibid. , § 452). 111 Additional Protocol I, Article 12(4) (adopted by consensus) ( ibid. , § 381). 112 Netherlands, Military Manual ( ibid. , § 428); United States, Department of Defense, Statement ( ibid. , § 528). 113 See the military manuals of Ecuador ( ibid. ibid. , §§ 605–606), Kenya ( ibid. , , § 603), Germany ( § 607), Netherlands ( ibid. , § 609) and United States ( ibid. , § 622). 114 ibid. , § 601), New Zealand ( ibid. , § 610), Nigeria See, e.g., the military manuals of Canada ( ( ibid. , § 611), United Kingdom ( ibid. , §§ 615–616) and United States ( ibid. , §§ 617–618 and 620).

158 Rule 28 97 Loss of protection due to medical units State practice establishes the exception under customary international law that the protection of medical units ceases when they are being used, outside their humanitarian function, to commit acts harmful to the enemy. This exception is provided for in the First and Fourth Geneva Conventions and in both Addi- 115 tional Protocols. It is contained in numerous military manuals and military 117 116 orders. It is also supported by other practice. While the Geneva Conventions and Additional Protocols do not define “acts harmful to the enemy”, they do indicate several types of acts which do not constitute “acts harmful to the enemy”, for example, when the personnel of the unit is armed, when the unit is guarded, when small arms and ammunition taken from the wounded and sick are found in the unit and when wounded and 118 sick combatants or civilians are inside the unit. According to the Commen- tary on the First Geneva Convention, examples of acts harmful to the enemy include the use of medical units to shelter able-bodied combatants, to store arms or munitions, as a military observation post or as a shield for military 119 action. It is further specified in State practice that prior to an attack against a medical unit which is being used to commit acts harmful to the enemy, a warning has to be issued setting, whenever appropriate, a reasonable time-limit and that 120 an attack can only take place after such warning has remained unheeded. These procedural requirements are also laid down in the Geneva Conventions 121 and Additional Protocols. 115 ibid. , § 586); Fourth Geneva Convention, Article 19 First Geneva Convention, Article 21 ( ibid. ( ibid. , § 589); Additional , § 588); Additional Protocol I, Article 13 (adopted by consensus) ( Protocol II, Article 11(2) (adopted by consensus) ( , § 590). ibid. 116 See, e.g., the military manuals of Argentina ( ibid. , 596–597), ibid. , §§ 594–595), Australia ( ibid. ibid. , § 600), Canada ( ibid. , §§ 601–602), Bosnia and Herzegovina ( , § 599), Cameroon ( ibid. , § 603), Germany ( Ecuador ( , § 605), Kenya ( ibid. , § 607), Netherlands ( ibid. , § 608), ibid. New Zealand ( ibid. , § 610), Nigeria ( ibid. , § 611), South Africa ( ibid. , § 612), Spain ( ibid. , § 613), Switzerland ( ibid. , § 614), United Kingdom ( ibid. , §§ 615–616), United States ( ibid. , §§ 617, 619 and 621–622) and Yugoslavia ( ibid. , § 623). 117 See, e.g., the practice of Yugoslavia ( , § 631) and the reported practice of Bosnia and Herze- ibid. govina, Republika Srpska ( ibid. , § 629) and a State ( ibid. , § 632). 118 ibid. , § 587); Fourth Geneva Convention, Article 19 ( ibid. , First Geneva Convention, Article 22 ( § 588); Additional Protocol I, Article 13(2) (adopted by consensus) ( ibid. , § 589). 119 Jean S. Pictet (ed.), , ICRC, Geneva, 1952, pp. 200– Commentary on the First Geneva Convention 201; see also the military manuals of South Africa (cited in Vol. II, Ch. 7, § 612), Switzerland ibid. ( ibid. , § 619). , § 614) and United States ( 120 See, e.g., Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina ( ibid. , § 592) and the military manuals of Argentina ( ibid. , § 595), Australia ( ibid. ibid. , §§ 601–602), Ecuador ( ibid. , § 603), Germany ( ibid. , § 605), , §§ 596–597), Canada ( Netherlands ( , § 608), New Zealand ( ibid. , § 610), Nigeria ( ibid. , § 611), Spain ( ibid. , § 613), ibid. Switzerland ( ibid. , § 614), United States ( ibid. , §§ 619 and 621–622) and Yugoslavia ( ibid. , § 623). 121 ibid. , § 586); Fourth Geneva Convention, Article 19 ( ibid. , First Geneva Convention, Article 21 ( § 588); Additional Protocol I, Article 13(1) (adopted by consensus) ( ibid. , § 589); Additional Protocol II, Article 11(2) (adopted by consensus) ( ibid. , § 590).

159 98 medical and religious personnel and objects Rule 29. Medical transports assigned exclusively to medical transportation must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy. Practice Volume II, Chapter 7, Section E. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The obligation to respect and protect medical transports is set forth in Arti- cle 35 of the First Geneva Convention and Article 21 of the Fourth Geneva 122 Convention. Its scope was expanded in Article 21 of Additional Protocol I to cover civilian, in addition to military, means of transportation in all circum- 123 stances. This extension is widely supported in State practice, which either generally refers to medical transports without distinguishing between military 124 and civilian means of transportation or lists both as being protected. It is also 125 supported by States not, or not at the time, party to Additional Protocol I. Under the Statute of the International Criminal Court, intentionally direct- ing attacks against “medical units and transports...using the distinctive emblems of the Geneva Conventions in conformity with international law” 126 constitutes a war crime in international armed conflicts. 127 The rule is contained in numerous military manuals. Sweden’s IHL Man- ual identifies the protection of medical transports as set out in Article 21 of 122 ibid. , § 650); Fourth Geneva Convention, Article 21 ( ibid. First Geneva Convention, Article 35 ( , § 651). 123 Additional Protocol I, Article 21 (adopted by consensus) ( ibid. , § 652). 124 ibid. , § 661), Australia ( See, e.g., the practice of Argentina ( , §§ 662–663), Belgium ( ibid. , ibid. ibid. , § 666), Burkina Faso ( ibid. , § 667), Cameroon ( ibid. §§ 664–665), Benin ( , §§ 668–669), Canada ( , §§ 670–671), Colombia ( ibid. , §§ 672–673), Congo ( ibid. , § 674), Croatia ( ibid. ibid. , §§ 675–676), Dominican Republic ( ibid. , § 677), Ecuador ( ibid. , § 678), France ( ibid. , §§ 679– 681), Germany ( ibid. , §§ 682–683), Hungary ( ibid. , § 684), Italy ( ibid. , § 685), Kenya ( ibid. , § 686), Lebanon ( ibid. ibid. , § 688), Morocco ( ibid. , § 689), Netherlands ( ibid. , , § 687), Mali ( ibid. ibid. , § 693), Nigeria ( ibid. , §§ 694–695), §§ 690–691), New Zealand ( , § 692), Nicaragua ( ibid. , § 696), Russia ( ibid. , § 697), Senegal ( ibid. Romania ( ibid. , , §§ 698–699), South Africa ( § 700), Spain ( ibid. , § 701), Sweden ( ibid. , § 702), Switzerland ( ibid. , § 703), Togo ( ibid. , § 704), United Kingdom ( ibid. , §§ 705–706), United States ( ibid. , §§ 708–710) and Yugoslavia ( ibid. , § 711). 125 ibid. See, e.g., the practice of the United Kingdom ( , § 740). 126 ibid. , § 832). ICC Statute, Article 8(2)(b)(xxiv) ( 127 See, e.g., the military manuals of Argentina ( ibid. , § 661), Australia ( ibid. , §§ 662–663), Belgium ( ibid. , §§ 664–665), Benin ( ibid. , § 666), Burkina Faso ( ibid. , § 667), Cameroon ( ibid. , §§ 668– 669), Canada ( ibid. , §§ 670–671), Colombia ( ibid. , §§ 672–673), Congo ( ibid. , § 674), Croatia

160 Rule 29 99 Additional Protocol I as a codification of a pre-existing rule of customary inter- 128 national law. It is an offence under the legislation of many States to vio- 129 late this rule. Furthermore, the rule is supported by official statements and 130 reported practice. Non-international armed conflicts This rule is implicit in common Article 3 of the Geneva Conventions, which requires that the wounded and sick be collected and cared for, because the protection of medical transports is a subsidiary form of protection granted to 131 ensure that the wounded and sick receive medical care. The rule that medical transports must be respected and protected at all times, and must not be the 132 object of attack, is explicitly set forth in Additional Protocol II. Under the Statute of the International Criminal Court, intentionally directing attacks against “medical units and transports . . . using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war 133 crime in non-international armed conflicts. In addition, this rule is contained 134 in other instruments pertaining also to non-international armed conflicts. The obligation to respect and protect medical transports is set forth in mili- tary manuals which are applicable in or have been applied in non-international 135 armed conflicts. It is an offence under the legislation of many States to violate ibid. ibid. , § 677), Ecuador ( ibid. , § 678), France ( ( , , §§ 675–676), Dominican Republic ( ibid. , §§ 682–683), Hungary ( ibid. , § 684), Italy ( ibid. , § 685), Kenya ibid. §§ 679–681), Germany ( ibid. , § 686), Lebanon ( ibid. , § 687), Mali ( ( , § 688), Morocco ( ibid. , § 689), Netherlands ibid. ( , §§ 690–691), New Zealand ( ibid. , § 692), Nicaragua ( ibid. , § 693), Nigeria ( ibid. , §§ 694– ibid. ibid. ibid. , § 697), Senegal ( ibid. , §§ 698–699), South Africa 695), Romania ( , § 696), Russia ( ibid. , § 700), Spain ( ibid. , § 701), Sweden ( ibid. , § 702), Switzerland ( ibid. , § 703), Togo ( ibid. , ( ibid. ibid. § 704), United Kingdom ( , §§ 707–710) and Yugoslavia , §§ 705–706), United States ( ibid. ( , § 711). 128 IHL Manual ( ibid. , § 702). Sweden, 129 See, e.g., the legislation of Bangladesh ( ibid. , § 713), Colombia ( ibid. , § 714), Estonia ( ibid. , § 716), Georgia ( ibid. , § 717), Germany ( ibid. , § 718), Ireland ( ibid. , § 719), Italy ( ibid. , § 720), Lithuania ( ibid. ibid. , § 722), Norway ( ibid. , § 724), Romania ( ibid. , § 725), , § 721), Nicaragua ( ibid. , §§ 726–727), Tajikistan ( , § 728) and Venezuela ( ibid. , § 729); see also the draft Spain ( ibid. ibid. ibid. , § 715) and Nicaragua ( ibid. , § 723). legislation of Argentina ( , § 712), El Salvador ( 130 ibid. , § 731), Egypt ( ibid. , §§ 732–733), France ( ibid. , § 734), See, e.g., the practice of Argentina ( ibid. , § 735), Hungary ( ibid. , § 736), Lebanon ( ibid. , § 738), United Kingdom ( ibid. , Germany ( ibid. §§ 739–740) and Yugoslavia ( , § 742). 131 ibid. , § 665), Colombia ( ibid. , This reasoning is put forward in the military manuals of Belgium ( ibid. , § 693). § 672) and Nicaragua ( 132 Additional Protocol II, Article 11(1) (adopted by consensus) ( ibid. , § 653). 133 ICC Statute, Article 8(2)(e)(ii) ( ibid. , § 832). 134 See, e.g., Agreement on the Application of IHL between the Parties to the Conflict in Bosnia ibid. , § 657). and Herzegovina ( 135 ibid. , § 661), Australia ( ibid. , §§ 662–663), Benin See, e.g., the military manuals of Argentina ( ibid. , § 666), Cameroon ( ibid. , § 669), Canada ( ibid. , §§ 670–671), Colombia ( ibid. , §§ 672–673), ( Croatia ( ibid. , §§ 675–676), Ecuador ( ibid. , § 678), Germany ( ibid. , §§ 682–683), Hungary ( ibid. , § 684), Italy ( , § 685), Kenya ( ibid. , § 686), Lebanon ( ibid. , § 687), Netherlands ( ibid. , § 690), ibid. New Zealand ( ibid. , § 692), Nigeria ( ibid. , § 695), Russia ( ibid. , § 697), Senegal ( ibid. , § 699), South Africa ( ibid. , § 700) and Togo ( ibid. , § 704).

161 100 medical and religious personnel and objects 136 this rule in any armed conflict. Furthermore, it has been invoked in official 137 statements specifically relating to non-international armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged attacks against medical transports 138 have generally been condemned by States. They have also been condemned by the United Nations and other international organisations, for example, in the context of the Iran–Iraq War and the conflicts in the Middle East, Sudan and the 139 former Yugoslavia. The ICRC has called upon parties to both international 140 and non-international armed conflicts to respect this rule. Definition of medical transports The term “medical transports” refers to any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation under the control of a competent authority of a party to the conflict. This includes means of transportation by land, water or air, such as 141 ambulances, hospital ships and medical aircraft. These vehicles, ships and aircraft must be exclusively assigned to the conveyance of the wounded, sick and shipwrecked, medical personnel, religious personnel, medical equipment or medical supplies. This definition is based on Article 8(f)–(g) of Additional 143 142 Protocol I. It is widely used in State practice. In the absence of a definition of medical transports in Additional Protocol II, this term may be understood as 144 applying in the same sense in non-international armed conflicts. 136 ibid. , § 713), Colombia ( , § 714), Estonia ( ibid. , See, e.g., the legislation of Bangladesh ( ibid. , § 717), Germany ( ibid. , § 718), Ireland ( ibid. , § 719), Lithuania ( ibid. , § 716), Georgia ( ibid. § 721), Nicaragua ( , § 722), Norway ( ibid. , § 724), Spain ( ibid. , §§ 726–727), Tajikistan ibid. ( , § 728) and Venezuela ( ibid. , § 729); see also the legislation of Italy ( ibid. , § 720) and ibid. Romania ( ibid. , § 725), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 712), El Salvador ( ibid. , § 715) and Nicaragua ( ibid. , § 723). 137 See, e.g., the statements of Argentina ( , § 731), Hungary ( ibid. , § 736) and Yugoslavia ( ibid. , ibid. § 742). 138 ibid. , § 731), Egypt ( ibid. , § 732), Hungary ( ibid. , § 736), See, e.g., the statements of Argentina ( ibid. Lebanon ( ibid. , § 742) and the reported practice of Iran ( ibid. , , § 738) and Yugoslavia ( § 737). 139 See, e.g., UN Security Council, Res. 771 ( ibid. , § 743); UN Commission on Human Rights, Res. 1992/S-1/1 ( ibid. , § 744); UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Former Yugoslavia, Periodic report ( ibid. , § 745); Director of MINUGUA, First report ( ibid. , § 746); UN Commission on Human Rights, Special Rapporteur ibid. on the Situation of Human Rights in the Sudan, Report ( , § 747). 140 ibid. , §§ 752–755 and 757–759). See the practice of the ICRC ( 141 The protection of hospital ships is governed by the Second Geneva Convention, Articles 22–35, and by Additional Protocol I, Articles 22–23. Medical aircraft are dealt with in the next section. 142 Additional Protocol I, Article 8(f)–(g). 143 See, e.g., the practice of Australia (cited in Vol. II, Ch. 7, § 663), Cameroon ( ibid. , § 669), New , § 725). Zealand ( , § 692), South Africa ( ibid. , § 700), Spain ( ibid. , § 701) and Romania ( ibid. ibid. 144 See the declaration to this effect by the United States ( ibid. , § 654); see also Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 4712.

162 Rule 29 101 Medical aircraft With respect to medical aircraft, State practice recognises that, in principle, medical aircraft must be respected and protected when performing their human- itarian functions. Under the Geneva Conventions medical aircraft may not be attacked while flying at altitudes, at times and on routes specifically agreed upon and flights over enemy-controlled territory are prohibited, unless other- 146 145 wise agreed. Pursuant This is also set forth in several military manuals. to Additional Protocol I, attacks on medical aircraft, when they are recog- nised as such, are prohibited, even when there is no special agreement gov- 147 erning the flight. This prohibition is also set forth in the San Remo Man- 148 149 ual on Naval Warfare, as well as in many military manuals. The United States has stated that it supports the principle that “known medical aircraft 150 be respected and protected when performing their humanitarian functions”. Some military manuals list “deliberate attack” on medical aircraft as a war 151 crime. Respect for and protection of medical transports State practice generally indicates that medical transports enjoy the same pro- tection as mobile medical units. Hence, the meaning of the terms “respect and protection” as interpreted in the context of medical units (see commentary to Rule 28) applies to medical transports. In practice, this mutatis mutandis means that medical transports must not be attacked or their passage arbitrar- ily obstructed. This interpretation is explicitly stated in the military manuals 152 of Germany, South Africa and Switzerland. The military manuals of Benin, 145 First Geneva Convention, Article 36 (cited in Vol. II, Ch. 7, § 768); Fourth Geneva Convention, Article 22 ( ibid. , § 769). 146 ibid. , § 780), Indonesia ( ibid. See, e.g., the military manuals of Belgium ( , 789), Switzerland ( , § 800), United Kingdom ( ibid. , § 801) and United States ( ibid. ibid. , § 803). 147 Additional Protocol I, Articles 25–27 (adopted by consensus) ( ibid. , §§ 770–772). 148 San Remo Manual, para. 53(a) ( ibid. , § 776). 149 See, e.g., the military manuals of Australia ( , § 779), Belgium ( ibid. , § 780), Canada ( ibid. , ibid. ibid. ibid. , § 793), New Zealand ( ibid. , § 794), South § 781), Hungary ( , § 788), Netherlands ( ibid. , § 797), Spain ( ibid. Africa ( ibid. , § 799), United States ( ibid. , §§ 804–805) , § 798), Sweden ( and Yugoslavia ( ibid. , § 807); see also the military manuals of Croatia ( ibid. , § 783), Lebanon ( ibid. , § 792) and Russia ( ibid. , § 796) (requiring respect for aircraft displaying the distinctive emblem) and the military manuals of the Dominican Republic ( ibid. , § 784) (soldiers may ibid. , § 791) (medical aircraft must be “respected and not attack military aircraft) and Italy ( protected”). 150 United States, Department of State, Remarks of the Deputy Legal Adviser ( ibid. , § 819). 151 See, e.g., the military manuals of Ecuador ( ibid. , § 785) and United States ( ibid. , §§ 804 and 806). 152 See the military manuals of Germany ( ibid. , § 683) (“their unhampered employment shall be ensured at all times”), South Africa ( ibid. , § 700) (“they may not be attacked or damaged, nor may their passage be obstructed”) and Switzerland ( ibid. , § 703) (“they shall not be attacked, nor harmed in any way, nor their functioning be impeded”).

163 102 medical and religious personnel and objects Nigeria, Senegal and Togo state that the mission, content and actual use of 153 medical transports may be checked through inspection. Loss of protection due to medical transports State practice generally indicates that medical transports enjoy the same pro- tection as mobile medical units. Hence, the conditions for loss of protection as interpreted in the context of medical units (see commentary to Rule 28) apply mutatis mutandis to medical transports. According to State practice, the transport of healthy troops, arms or muni- tions and the collection or transmission of military intelligence are examples 154 of uses of medical transports leading to loss of protection. Hence, medical aircraft should not carry any equipment intended for the collection or trans- 155 mission of intelligence. Upon ratification of Additional Protocol I, France and the United Kingdom made statements with regard to Article 28 in which they recognised the practical need to use non-dedicated aircraft for medical evacuations and therefore interpreted Article 28 as not precluding the pres- ence on board of communications equipment and encryption materials or the use thereof solely to facilitate navigation, identification or communication in 156 support of medical transportation. Article 28 of Additional Protocol I sets 157 In addition, light arms carried out other prohibited acts by medical aircraft. by medical personnel in self-defence or which have just been taken from the wounded and not yet turned over to the proper authority do not constitute prohibited equipment either (see commentary to Rule 25). Rule 30. Attacks directed against medical and religious personnel and objects displaying the distinctive emblems of the Geneva Conventions in conformity with international law are prohibited. Practice Volume II, Chapter 7, Section F. 153 ibid. , § 666), Nigeria ( ibid. See, e.g., the military manuals of Benin ( ibid. , § 699) , § 695), Senegal ( and Togo ( ibid. , § 704). 154 See the practice referred to supra in footnote 117; see also the practice of Argentina ( ibid. , § 661), Canada ( ibid. , §§ 670–671), Croatia ( ibid. , § 675), France ( ibid. , § 680), Italy ( ibid. , § 685), Netherlands ( ibid. ibid. , § 700). , § 691) and South Africa ( 155 Additional Protocol I, Article 28(2) (adopted by consensus) ( , § 773); San Remo Man- ibid. ibid. ual ( ibid. , § 779), Canada ( ibid. , § 781), , § 777); the military manuals of Australia ( Croatia ( ibid. , § 782), France ( ibid. , § 786), Germany ( ibid. , § 787), Italy ( ibid. , § 790), , § 799) and Yugoslavia ( Netherlands ( ibid. , § 798), Sweden ( ibid. , § 793), Spain ( ibid. , ibid. § 807). 156 France, Reservations and declarations made upon ratification of Additional Protocol I ( ibid. , § 774); United Kingdom, Reservations and declarations made upon ratification of Additional Protocol I ( ibid. , § 775). 157 Additional Protocol I, Article 28 (adopted by consensus) ( ibid. , § 773).

164 Rule 30 103 Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts Under the Statute of the International Criminal Court, “intentionally directing attacks against buildings, material, medical units and transport, and person- nel using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in both international and non- 158 international armed conflicts. The prohibition on attacking persons and objects displaying the distinctive 159 emblems is contained in numerous military manuals. It is an offence under the legislation of many States to attack persons and objects displaying the dis- 160 tinctive emblems. Furthermore, the rule is supported by official statements 161 and reported practice. On numerous occasions, the ICRC has called on parties to both international and non-international armed conflicts to respect persons and objects displaying 162 the distinctive emblems. No official contrary practice was found with respect to either international or non-international armed conflicts. Attacks directed against persons and objects 163 displaying the distinctive emblems have generally been condemned. Interpretation As this rule indicates, respect for the distinctive emblems is conditional on their proper use (see Rule 59). Practice also shows that failure to wear or dis- play the distinctive emblems does not of itself justify an attack on medical or 158 ibid. , § 832). ICC Statute, Article 8(2)(b)(xxiv) and (e)(ii) ( 159 See, e.g., the military manuals of Australia ( , § 840), Benin ( ibid. , § 841), Cameroon ( ibid. , ibid. ibid. ibid. , § 845), France ( ibid. , §§ 846–847), Germany § 842), Canada ( , §§ 843–844), Colombia ( ibid. , § 848), Hungary ( ibid. , § 849), Indonesia ( ibid. , § 850), Italy ( ( , § 851), Kenya ( ibid. , ibid. § 852), Lebanon ( ibid. , § 853), Madagascar ( ibid. , § 854), Nigeria ( ibid. , § 855), Philippines ( ibid. , §§ 856–857), Romania ( ibid. , § 858), Senegal ( ibid. , § 859), Switzerland ( ibid. , § 860), Togo ( ibid. , § 861), United Kingdom ( ibid. ibid. , § 863). , § 862) and United States ( 160 See, e.g., the legislation of Australia ( , § 864), Azerbaijan ( ibid. , § 865), Belarus ( ibid. , ibid. ibid. , § 868), Colombia ( ibid. , § 869), Congo ( § 866), Canada ( , § 870), Denmark ( ibid. , ibid. § 871), Estonia ( ibid. , § 873), Germany ( ibid. , § 874), Netherlands ( ibid. , § 875), New Zealand ( ibid. , § 876), Nicaragua ( ibid. , § 877), Peru ( ibid. , § 879), Romania ( ibid. , § 880), Spain ( ibid. , § 881), Sweden ( ibid. ibid. , § 883), United Kingdom ( ibid. , § 885) and , § 882), Switzerland ( ibid. ibid. Venezuela ( , § 867), El Salvador , § 886); see also the draft legislation of Burundi ( ibid. ( ibid. , § 878) and Trinidad and Tobago ( ibid. , § 884). , § 872), Nicaragua ( 161 See, e.g., the statements of Bosnia and Herzegovina, Republika Srpska ( , § 888), Kuwait ibid. ( ibid. , § 890) and Yugoslavia ( ibid. , § 892). 162 See the practice of the ICRC ( ibid. , §§ 906, 908–910, 912–917, 919, 921–925 and 927–928). 163 See, e.g., the practice of Yugoslavia ( ibid. , § 891) and the ICRC ( ibid. , §§ 905 and 926).

165 104 medical and religious personnel and objects religious personnel and objects when they are recognised as such. This is an application of the general principle that the distinctive emblems are intended to facilitate identification and do not, of themselves, confer protected status. In other words, medical and religious personnel and objects are protected because of their function. The display of the emblems is merely the visible manifesta- tion of that function but does not confer protection as such. The Elements of Crimes for the International Criminal Court stresses that the war crime of “intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law” includes attacks against persons and objects displaying a distinctive emblem or other method of identification, such as the distinctive signals, indicating protection under the 164 Geneva Conventions. 164 See Knut D Elements of War Crimes under the Rome Statute of the International ormann, ̈ Criminal Court, Sources and Commentary , Cambridge University Press, Cambridge, 2002, p. 350; see also Articles 6–9 of Annex I to Additional Protocol I concerning light signals, radio signals and electronic identification.

166 chapter 8 HUMANITARIAN RELIEF PERSONNEL AND OBJECTS Rule 31. Humanitarian relief personnel must be respected and protected. Practice Volume II, Chapter 8, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Respect for and protection of humanitarian relief personnel is a corollary of the prohi- bition of starvation (see Rule 53), as well as the rule that the wounded and sick must be collected and cared for (see Rules 109–110), which are applicable in both international and non-international armed conflicts. The safety and security of humanitarian relief personnel is an indispensable condition for the delivery of humanitarian relief to civilian populations in need threatened with starvation. International armed conflicts The obligation to respect and protect humanitarian relief personnel is set forth 1 in Article 71(2) of Additional Protocol I. Under the Statute of the International Criminal Court, intentionally directing attacks against personnel involved in a humanitarian assistance mission in accordance with the Charter of the United Nations is a war crime in international armed conflicts, as long as such person- nel are entitled to the protection given to civilians under international human- 2 itarian law. Hence, members of armed forces delivering humanitarian aid are not covered by this rule. United Nations personnel delivering humanitarian aid, however, enjoy specific protection under the Convention on the Safety of 3 United Nations Personnel. 1 Additional Protocol I, Article 71(2) (adopted by consensus) (cited in Vol. II, Ch. 8, § 3). 2 ICC Statute, Article 8(2)(b)(iii) ( ibid. , § 142). 3 Convention on the Safety of UN Personnel, Article 7(2) ( ibid. , § 4). 105

167 106 humanitarian relief personnel and objects A number of military manuals state the obligation to respect and protect 4 humanitarian relief personnel. Sweden’s IHL Manual, in particular, identifies Article 71(2) of Additional Protocol I as codifying pre-existing rules of custom- 5 ary law. It is an offence under the legislation of numerous States to attack 6 humanitarian relief personnel. The rule is also supported by official state- 7 ments and reported practice. This practice includes that of States not party to 8 Additional Protocol I. The rule has also been invoked by parties to Additional 9 Protocol I against non-parties. The obligation to respect and protect humanitarian relief personnel is recalled in resolutions of international organisations, the large majority of which deal ). with non-international armed conflicts (see infra Non-international armed conflicts While Article 18(2) of Additional Protocol II requires that relief actions for the civilian population in need be organised, the Protocol does not contain a specific provision on the protection of humanitarian relief personnel. This rule is indispensable, however, if relief actions for civilian populations in need are to succeed. Under the Statutes of the International Criminal Court and of the Special Court for Sierra Leone, intentionally directing attacks against personnel involved in a humanitarian assistance mission in accordance with the Charter of the United Nations is considered a war crime in non-international armed conflicts, as long as such personnel are entitled to the protection given 10 to civilians under international humanitarian law. In addition, this rule is contained in a number of other instruments pertaining also to non-international 11 armed conflicts. 4 See, e.g., the military manuals of Argentina ( , § 12), Australia ( ibid. , § 13), Canada ( ibid. , ibid. ibid. , § 15), Netherlands ( ibid. , § 16), Sweden ( ibid. , § 17) and Yugoslavia ( ibid. , § 14), France ( § 18). 5 IHL Manual ibid. , § 17). Sweden, ( 6 See, e.g., the legislation of Australia ( , § 147), Azerbaijan ( ibid. , § 148), Canada ( ibid. , ibid. § 150), Congo ( ibid. , § 151), Estonia ( ibid. , § 152), Ethiopia ( ibid. , § 153), Germany ( ibid. , § 154), Ireland ( ibid. ibid. , §§ 156–157), Norway ( ibid. , § 20), Philippines , § 19), New Zealand ( ibid. , §§ 21 and 158), Portugal ( , § 159) and United Kingdom ( ibid. , §§ 161–162); see also ( ibid. , § 149) and Trinidad and Tobago ( ibid. , § 160). the draft legislation of Burundi ( ibid. 7 ibid. , § 23), Germany ( ibid. , §§ 25–26), Iraq ( See, e.g., the statements of Australia ( , § 28), ibid. Slovenia ( , § 35), South Africa ( ibid. , § 36) and Switzerland ( ibid. , § 37) and the reported ibid. ibid. , § 29), Netherlands ( ibid. , § 32) and Rwanda ( ibid. , § 34). practice of Iraq ( 8 See the practice of Azerbaijan ( ibid. ibid. , § 170), Iraq ( ibid. , §§ 28–29), Israel ( ibid. , , § 148), India ( ibid. , § 174), Turkey ( ibid. , § 177) and United Kingdom ( ibid. , § 38). § 172), Malaysia ( 9 See, e.g., the statements of Germany vis- , a-vis Afghanistan ( ibid. , § 25) and vis- ibid. a-vis Sudan ( ` ` § 169). 10 ICC Statute, Article 8(2)(e)(iii) ( ibid. , § 142); Statute of the Special Court for Sierra Leone, Article 4(b) ( ibid. , § 143). 11 See, e.g., Agreement No. 2 on the Implementation of the Agreement of 22 May 1992 between the Parties to the Conflict in Bosnia and Herzegovina, para. 2(d) ( ibid. , § 5); Agreement No. 3 on the ICRC Plan of Action between the Parties to the Conflict in Bosnia and Herzegovina,

168 Rule 31 107 The obligation to respect and protect humanitarian relief personnel is laid down in some military manuals which are applicable in or have been applied in 12 non-international armed conflicts. It is also contained in official statements 13 specifically relating to non-international armed conflicts. In addition, the United Nations and other international organisations have adopted resolutions invoking this rule. The UN Security Council, for exam- ple, has on numerous occasions urged the parties to non-international armed conflicts, such as in Afghanistan, Angola, Bosnia and Herzegovina, Burundi, Kosovo, Liberia, Rwanda and Somalia, to respect and protect humanitarian 14 relief personnel. This rule was reiterated at the World Conference on Human Rights in 1993 th th and at the 26 and 27 International Conferences of the Red Cross and Red 15 Crescent in 1995 and 1999 respectively. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have gener- ally been condemned by States regardless of whether the conflict was inter- 16 national or non-international in nature. They have also been condemned by 17 international organisations. Following attacks upon a vehicle carrying ICRC ibid. ibid. , § 7); Agreement on Ground Rules para. II(9) ( , § 6); Bahir Dar Agreement, para. 2 ( , § 8); UN Secretary-General’s Bulletin, Section 9 ( ibid. , § 9); for Operation Lifeline Sudan ( ibid. Agreement on the Protection and Provision of Humanitarian Assistance in the Sudan, para. 1 ibid. , § 10); Cairo Declaration, para. 67 ( ibid. , § 11). ( 12 ibid. See, e.g., the military manuals of Canada ( ibid. , § 18). , § 14) and Yugoslavia ( 13 ibid. , § 166), Germany ( , § 26), Russia ( ibid. , § 175), See, e.g., the statements of Burundi ( ibid. , § 36), United Kingdom ( ibid. , § 178) and United States ( ibid. , § 180). South Africa ( ibid. 14 ibid. , § 41), Res. 746 and 751 ( ibid. , § 42), Res. See, e.g., UN Security Council, Res. 733 and 814 ( ibid. , § 43), Res. 819 and 824 ( 758, 770 and 787 ( , § 44), Res. 851 ( ibid. , § 45), Res. 897, 923 ibid. and 954 ( , § 47), Res. 918 and 925 ( ibid. , § 48), Res. 946 ( ibid. , § 49), Res. 952 ( ibid. , § 50), ibid. ibid. , § 51), Res. 985, 1001 and 1014 ( ibid. , § 52), Res. 998 ( ibid. , § 53), Res. 1040 ( ibid. , Res. 954 ( § 54), Res. 1041, 1059 and 1071 ( ibid. , § 55), Res. 1075 and 1087 ( ibid. , § 56), Res. 1088 ( ibid. , § 57), Res. 1127 ( ibid. ibid. , § 59), Res. 1193 ( ibid. , § 60), Res. 1195 ( ibid. , , § 58), Res. 1173 ( ibid. ibid. , § 61), Res. 1199 and 1203 ( , § 62); UN Security Council, Statements by the President ( §§ 67–70, 72–73, 75–76, 81, 87–88, 90–91 and 93). 15 World Conference on Human Rights, Vienna Declaration and Programme of Action ( ibid. , ibid. , § 120); 26th International Conference of the Red Cross and Red Crescent, Res. IV ( § 121); 27th International Conference of the Red Cross and Red Crescent, Plan of Action for the years 2000–2003 (adopted by consensus) ( , § 123). ibid. 16 ibid. ibid. , §§ 179–180) and the See, e.g., the statements of Germany ( , § 169) and United States ( ibid. , § 175). reported practice of Russia ( 17 See, e.g., UN Security Council, Res. 757 ( ibid. , § 185), Res. 864 ( ibid. , § 186), Res. 897 and 923 ( ibid. , § 187), Res. 913 ( ibid. , § 188), Res. 946 ( ibid. , § 192), Res. 950 ( ibid. , § 193), Res. 954 ( ibid. , § 194), Res. 1049 ( ibid. ibid. , § 196), Res. 1193 ( ibid. , § 197) and , § 195), Res. 1071 and 1083 ( ibid. Res. 1265 ( ibid. , §§ 199–218); , § 198); UN Security Council, Statements by the President ( UN General Assembly, Res. 49/196 ( ibid. , § 219), Res. 49/206 and 50/200 ( ibid. , § 221), Res. 50/193 ( ibid. , § 223), Res. 53/87 ( ibid. , § 227), Res. 54/192 ( ibid. , § 229) and Res. 55/116 ( ibid. , § 230); UN Commission on Human Rights, Res. 1994/72 ( , § 233), Res. 1995/89 ( ibid. , ibid. § 235), Res. 1995/91 ( ibid. , § 236), Res. 1996/1 and 1997/77 ( ibid. , § 237) and Res. 1998/70 ( ibid. , § 242); OAU, Council of Ministers, Res. 1526 (LX) ( , § 255), Res. 1649 (LXIV) ( ibid. , § 256) ibid. and Res. 1662 (LXIV) ( ibid. , § 257); OSCE, Chairman-in-Office, Press Release No. 86/96 ( ibid. , § 258).

169 108 humanitarian relief personnel and objects personnel in Burundi in 1996, the President and the Prime Minister of Burundi both stated that they deplored the incident and that they had requested an inde- 18 pendent inquiry to identify the perpetrators. The Russian government reacted 19 similarly when six ICRC aid workers were killed in Chechnya the same year. The ICRC has reminded parties to both international and non-international 20 armed conflicts to respect this rule. Respect for and protection of humanitarian relief personnel Civilian humanitarian relief personnel are protected against attack accord- ing to the principle of distinction (see Rule 1). In addition to the pro- hibition of attacks on such personnel, practice indicates that harassment, intimidation and arbitrary detention of humanitarian relief personnel are pro- 21 hibited under this rule. The collected practice also contains examples in which the following acts against humanitarian aid personnel have been con- demned: mistreatment, physical and psychological violence, murder, beat- ing, abduction, hostage-taking, harassment, kidnapping, illegal arrest and 22 detention. Furthermore, there is a considerable amount of State practice which requires that parties to a conflict ensure the safety of humanitarian relief person- 23 nel authorised by them, as invoked in a number of official statements. In addition, the UN Security Council has called on the parties to the conflicts 18 19 ibid. See the practice of Russia ( ibid. See the practice of Burundi ( , § 166). , § 175). 20 See the practice of the ICRC ( ibid. , §§ 125–128 and 130–132). 21 See the practice of Germany ( , § 169) and Philippines ( ibid. , § 158); UN Security Council, ibid. Res. 897 and 923 ( , § 187), Res. 918 and 925 ( ibid. , § 189), Res. 940 ( ibid. , § 190), Res. 946 ibid. , § 196); UN ibid. , § 193), Res. 954 ( ibid. , § 194) and Res. 1071 ( ibid. ibid. ( , § 192), Res. 950 ( ibid. , §§ 199, 202, 204, 212, 216 and 219); UN Security Council, Statements by the President ( ibid. , § 222), Res. 53/87 ( ibid. General Assembly, Res. 51/30 B ( ibid. , § 229) , § 227), Res. 54/192 ( and Res. 55/116 ( , § 230); UN Commission on Human Rights, Res. 1995/89 ( ibid. , § 225) ibid. and Res. 2001/18 ( , § 243); UN Secretary-General, Report on UNOMIL ( ibid. , § 244); UN ibid. Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in the Sudan, Report ( ibid. , § 248). 22 See, e.g., the practice of Russia ( , § 175) and United States ( ibid. , §§ 179–180); UN Security ibid. ibid. , § 187), Res. 918 and 925 ( , § 189), Res. 940 ( ibid. , § 190), Council, Res. 897 and 923 ( ibid. , § 191), Res. 950 ( ibid. , § 193), Res. 954 ( ibid. , § 194), Res. 1049 ( ibid. , Res. 945 and 952 ( ibid. ibid. , § 197) and Res. 1265 ( § 195), Res. 1193 ( , § 198); UN Security Council, Statements ibid. by the President ( , §§ 199, 204–208, 210–213 and 216); UN General Assembly, Res. 52/167 ibid. ibid. ibid. ibid. , § 227), Res. 53/164 ( ( , § 228), Res. 54/192 ( , § 226), Res. 53/87 ( , § 229) ibid. and Res. 55/116 ( ibid. , § 230); UN Commission on Human Rights, Res. 1994/79 and 1995/77 ( ibid. , § 234), Res. 1995/91 ( ibid. , § 236), Res. 1996/1 and 1997/77 ( ibid. , § 237), 1996/73 ( ibid. , § 238) and 1997/59 ( ibid. ibid. , § 244); , § 239); UN Secretary-General, Report on UNOMIL ( UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in Burundi, Second report ( ibid. , § 247) and Special Rapporteur on the Situation of Human Rights in the Sudan, Report ( ibid. , § 248); Council of Europe, Parliamentary Assembly, Res. 921 ( ibid. , § 251); OAU, Council of Ministers, Res. 1526 (LX) ( ibid. , § 255), Res. 1649 (LXIV) ( ibid. , § 256) and Res. 1662 (LXIV) ( , § 257); OSCE, Chairman-in-Office, Press Release No. 86/96 ( ibid. , ibid. § 258). 23 See, e.g., the statements of Australia ( ibid. , § 23), Germany ( ibid. , § 25), Slovenia ( ibid. , § 35) and South Africa ( ibid. , § 36).

170 Rule 32 109 in Afghanistan, Angola, Bosnia and Herzegovina, Burundi, Kosovo, Liberia, Rwanda and Somalia to ensure respect for the security and safety of humanitar- 24 ian relief personnel. In a resolution adopted in 2000 on protection of civilians in armed conflicts, the UN Security Council called upon all parties to an armed conflict, including non-State parties, “to ensure the safety, security and free- 25 dom of movement” of humanitarian relief personnel. While the Additional Protocols provide that the protection of humanitarian relief personnel applies only to “authorised” humanitarian personnel as such, the overwhelming majority of practice does not specify this condition. The notion of authorisation refers to the consent received from the party to the 26 conflict concerned to work in areas under its control. Authorisation may not be withheld for arbitrary reasons to deny access to humanitarian relief personnel (see commentary to Rule 55). Rule 32. Objects used for humanitarian relief operations must be respected and protected. Practice Volume II, Chapter 8, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule is a corollary of the prohibition of starvation (see Rule 53), which is appli- cable in both international and non-international armed conflicts, because the safety and security of humanitarian relief objects are an indispensable condition for the delivery of humanitarian relief to civilian populations in need threatened with starvation. In that framework, this rule is also a corol- lary of the prohibition on deliberately impeding the delivery of humanitarian relief (see commentary to Rule 55), because any attack on, destruction or pil- lage of relief objects inherently amounts to an impediment of humanitarian relief. 24 UN Security Council, Res. 733 and 814 ( ibid. , § 41), Res. 746 and 751 ( ibid. , § 42), Res. 758, 770 and 787 ( ibid. , § 43), Res. 824 ( ibid. , § 44), Res. 851 ( ibid. , § 45), Res. 897, 923 and 954 ( ibid. , § 47), Res. 918 and 925 ( ibid. ibid. , § 49), Res. 952 ( ibid. , § 50), Res. 954 ( ibid. , , § 48), Res. 946 ( ibid. , § 52), Res. 998 ( ibid. , § 53), Res. 1040 ( ibid. , § 54), Res. § 51), Res. 985, 1001 and 1014 ( 1041, 1059 and 1071 ( ibid. , § 55), Res. 1075 and 1087 ( ibid. , § 56), Res. 1193 ( ibid. , § 60), Res. 1195 ( , § 61) and Res. 1199 and 1203 ( ibid. , § 62). ibid. 25 UN Security Council, Res. 1296 ( ibid. , § 65). 26 Additional Protocol I, Article 71(1) (adopted by consensus) ( ibid. , § 3); Additional Protocol II, Article 18(2) (adopted by consensus) (cited in Vol. II, Ch. 17, § 680).

171 110 humanitarian relief personnel and objects International armed conflicts The Fourth Geneva Convention requires that all States guarantee the protec- 27 tion of relief supplies intended for occupied territory. This rule is now more 28 generally set forth in Additional Protocol I. Under the Statute of the Inter- national Criminal Court, intentionally directing attacks against installations, material, units or vehicles involved in a humanitarian assistance mission in accordance with the Charter of the United Nations is considered a war crime in international armed conflicts, as long as such objects are entitled to the pro- 29 tection given to civilian objects under the international law of armed conflict. The protection of objects used for humanitarian relief operations is also con- tained in the legislation of numerous States, under which it is an offence to 30 attack such objects. This rule is also supported by official statements and 31 other practice. This practice includes that of States not party to Additional 32 Protocol I. It has also been invoked by parties to Additional Protocol I against 33 non-parties. The rule is also recalled in resolutions of international organisations, the large majority of which, however, deal with non-international conflicts (see ). infra Non-international armed conflicts While Article 18(2) of Additional Protocol II requires relief actions for the civil- ian population in need to be organised, the Protocol does not contain a specific 34 provision on the protection of objects used in humanitarian relief operations. This rule is indispensable, however, if relief actions for civilian populations in need are to succeed. Under the Statutes of the International Criminal Court and of the Special Court for Sierra Leone, intentionally directing attacks against installations, material, units or vehicles involved in a humanitarian assistance mission in accordance with the Charter of the United Nations is considered a war crime in non-international armed conflicts, as long as such objects are entitled to the protection given to civilian objects under the international law 27 Fourth Geneva Convention, Article 59. 28 Additional Protocol I, Article 70(4) (adopted by consensus) (cited in Vol. II, Ch. 8, § 282). 29 ICC Statute, Article 8(2)(b)(iii) ( ibid. , § 285). 30 ibid. See, e.g., the legislation of Australia ( ibid. , § 296), , §§ 294–295), Bosnia and Herzegovina ( ibid. , § 298), China ( Canada ( , § 299), Colombia ( ibid. , § 300), Congo ( ibid. , § 301), Croatia ibid. ( ibid. , § 302), Ethiopia ( ibid. , § 304), Germany ( ibid. , § 305), Ireland ( ibid. , § 306), Netherlands ( ibid. ibid. , § 309), Norway ( ibid. , § 310), Portugal ( ibid. , § 311), , §§ 307–308), New Zealand ( ibid. , § 315); see also the ibid. , § 314) and Yugoslavia ( ibid. Slovenia ( , § 312), United Kingdom ( ibid. ibid. draft legislation of Burundi ( , § 303) and Trinidad and Tobago , § 297), El Salvador ( ibid. ( , § 313). 31 See, e.g., the military manual of Kenya ( ibid. , § 292), the statements of Bosnia and Herzegovina, Republika Srpska ( ibid. , § 317), Germany ( ibid. , § 321) and United States ( ibid. , § 326) and the reported practice of Brazil ( , § 318), Nigeria ( ibid. , § 324) and United Kingdom ( ibid. , § 325). ibid. 32 See, e.g., the military manual of Kenya ( ibid. , § 292), the statement of the United States ( ibid. , § 326) and the reported practice of the United Kingdom ( , § 325). ibid. 33 See, e.g., the statement of Germany vis- a-vis Sudan ( ibid. , § 321). ` 34 Additional Protocol II, Article 18(2) (adopted by consensus) (cited in Vol. II, Ch. 17, § 680).

172 Rule 32 111 35 In addition, this rule is contained in other instruments of armed conflict. 36 pertaining also to non-international armed conflicts. The protection of objects used for humanitarian relief operations is supported by official statements made in the context of non-international armed conflicts 37 and by reported practice. The rule is recalled in a large number of resolutions adopted by the United Nations and other international organisations. The UN Security Council, for example, has referred to this rule with respect to the conflicts in Angola, Liberia 38 and Rwanda. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have generally 39 been condemned by States, regardless of the nature of the armed conflict. They have also been condemned by the United Nations and other international 40 organisations. The ICRC has reminded parties to both international and non- 41 international armed conflicts to respect this rule. Respect for and protection of humanitarian relief objects Objects involved in a humanitarian relief operation are, in principle, civilian objects and as such enjoy protection from attack (see Rule 7). State practice indi- cates that, in addition to attacks against humanitarian relief objects, destruc- 42 tion, misappropriation and looting of such objects are also prohibited. This is an application of the general rules relating to the destruction and seizure of property (see Chapter 16). There is some practice indicating that each party to the conflict must ensure the safety of humanitarian relief objects. In 1996, for example, the UN Security Council called upon all parties to the conflict in Angola to guarantee the safety of humanitarian supplies throughout the 43 country. 35 ICC Statute, Article 8(2)(e)(iii) (cited in Vol. II, Ch. 8, §§ 142 and 285); Statute of the Special Court for Sierra Leone, Article 4(b) ( ibid. , §§ 143 and 286). 36 See, e.g., Bahir Dar Agreement, para. 2 ( ibid. , § 288); UN Secretary-General’s Bulletin, Section ibid. , § 290); UNTAET Regulation 2000/15, Section 6(1)(b)(iii) and (e)(iii) ( 9.9 ( , § 291). ibid. 37 ibid. ibid. , § 326) and the See, e.g., the statements of Germany ( , § 321) and United States ( reported practice of Nigeria ( , § 324) and United Kingdom ( ibid. , § 325). ibid. 38 See, e.g., UN Security Council, Res. 918 ( ibid. , § 329), Res. 925 ( ibid. , § 329), Res. 950 ( ibid. , § 330), Res. 1075 ( ibid. ibid. , § 332). , § 332) and Res. 1087 ( 39 See, e.g., the statements of Germany ( , § 321) and United States ( ibid. , § 326). ibid. 40 ibid. , § 331), Res. 1071 ( ibid. , § 331), Res. 1083 ( ibid. , See, e.g., UN Security Council, Res. 1059 ( § 333) and Res. 1265 ( ibid. ibid. , , § 334); UN Security Council, Statements by the President ( ibid. , § 341) and Res. 54/192 ( §§ 336–340); UN General Assembly, Res. 51/30 B ( , § 343); ibid. UN Commission on Human Rights, Res. 1995/77 ( ibid. , § 345). 41 See, e.g., the practice of the ICRC ( ibid. , §§ 354 and 356–358). 42 See, e.g., the practice of Australia ( , § 294), Ethiopia ( ibid. , § 304) and Netherlands ( ibid. , ibid. § 307); see also the draft legislation of El Salvador ( ibid. , § 303); UN Security Council, Res. 950 ( ibid. , § 330), Res. 1059 ( ibid. , § 331), Res. 1071 ( ibid. , § 331) and Res. 1083 ( ibid. , § 333); UN Security Council, Statements by the President ( , §§ 336–340); UN General Assembly, Res. ibid. 51/30 B ( ibid. , § 341), Res. 54/192 ( ibid. , § 343) and Res. 55/116 ( ibid. , § 344). 43 UN Security Council, Res. 1075 and 1087 ( ibid. , § 332).

173 chapter 9 PERSONNEL AND OBJECTS INVOLVED IN A PEACEKEEPING MISSION Rule 33. Directing an attack against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law, is prohibited. Practice Volume II, Chapter 9. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts State practice treats peacekeeping forces, which are usually professional sol- diers, as civilians because they are not members of a party to the conflict and are deemed to be entitled to the same protection against attack as that accorded to civilians, as long as they are not taking a direct part in hostilities (see Rules 1 and 6). As civilians, peacekeeping forces are entitled to the fundamen- tal guarantees set out in Chapter 32. By the same token, objects involved in a peacekeeping operation are considered to be civilian objects, protected against attack (see Rule 7). Under the Statute of the International Criminal Court, intentionally direct- ing attacks against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations constitutes a war crime in both international and non-international armed conflicts, as long as they are entitled to the protection given to civilians and civilian objects under inter- 1 national humanitarian law. The Statute of the Special Court for Sierra Leone 2 also includes the rule. 1 ICC Statute, Article 8(2)(b)(iii) and (e)(iii) (cited in Vol. II, Ch. 9, § 4). 2 Statute of the Special Court for Sierra Leone, Article 4(b) ( ibid. , § 5). 112

174 Rule 33 113 3 Under the legislation of The rule is contained in some military manuals. many States, it is an offence to attack personnel and objects involved in a 4 peacekeeping mission. No official contrary practice was found. Attacks against peacekeeping per- 5 sonnel and objects have generally been condemned by States. They have also 6 been condemned by the United Nations and other international organisations. 7 Some of these condemnations refer to the attacks as criminal. In addition to direct attacks, the United Nations has condemned other acts perpetrated against peacekeeping personnel which do not amount to attacks as such, includ- ing harassment, abuse, intimidation, violence, detention and maltreatment, and has called upon the parties to conflicts to ensure their safety, security and 8 freedom of movement. ˇ ́ ́ Karad zi before the International Criminal Tribunal c and Mladi In the c case for the Former Yugoslavia, the accused have been charged for their role in the 9 “taking of civilians, that is UN peacekeepers, as hostages”. 3 , § 10), Germany ( ibid. , § 11), New Zealand See, e.g., the military manuals of Cameroon ( ibid. , § 12) and Spain ( , § 14). ibid. ibid. ( 4 , § 15), Azerbaijan ( ibid. , § 16), Canada ( ibid. , See, e.g., the legislation of Australia ( ibid. , § 19), Georgia ( ibid. , § 20), Germany ( ibid. , § 21), Mali ( ibid. , § 22), ibid. § 18), Congo ( ibid. , § 23), New Zealand ( Netherlands ( , §§ 24–25) and United Kingdom ( ibid. , §§ 27– ibid. 28); see also the draft legislation of Burundi ( , § 17) and Trinidad and Tobago ( ibid. , ibid. § 26). 5 , § 31), Finland ( ibid. , § 33), Germany ( ibid. , § 34), Liberia See, e.g., the practice of Australia ( ibid. , §§ 39–40) and , § 35), Russia ( ibid. ibid. , § 38), United Kingdom ( ibid. ibid. ( , § 37), Ukraine ( ibid. , §§ 41–42). United States ( 6 ibid. , § 46), Res. 788 ( ibid. , § 47), Res. 794 ( ibid. See, e.g., UN Security Council, Res. 757 ( , § 48), Res. 802 ( , § 49), Res. 804 ( ibid. , § 50), Res. 897, 923 and 954 ( ibid. , § 55), Res. ibid. ibid. , § 62), Res. 994 ( ibid. , § 60), Res. 987 ( ibid. 912 ( ibid. , § 64), Res. 1004 , § 56), Res. 946 ( ( , § 66), Res. 1009 ( ibid. , § 67), Res. 1041 ( ibid. , § 70), Res. 1059, 1071 and 1083 ( ibid. , ibid. § 71), Res. 1099 ( ibid. , § 73), Res. 1118 ( ibid. , § 74), Res. 1157 ( ibid. , § 75), Res. 1164 ( ibid. , § 76), Res. 1173 and 1180 ( ibid. ibid. , § 78); UN General Assembly, , § 77) and Res. 1187 ( ibid. , § 98), Res. 49/196 ( , § 99) and Res. 50/193 ( ibid. , § 100); UN Com- Res. 47/121 ( ibid. , § 101), Res. 1994/60 ( , § 102), Res. 1994/72 ibid. mission on Human Rights, Res. 1993/7 ( ibid. , § 103) and Res. 1995/89 ( ibid. , § 104); ECOWAS, First Summit Meeting of the Com- ( ibid. e( ibid. , § 118); EU, Statement before mittee of Nine on the Liberian Crisis, Final Communiqu ́ the UN Security Council ( ibid. , § 119); OIC, Conference of Ministers of Foreign Affairs, Res. ibid. , § 120) and statement before the UN Security Council ( 1/6-EX ( , § 121); 88th Inter- ibid. Parliamentary Conference, Resolution on support to the recent international initiatives to halt ibid. the violence and put an end to the violations of human rights in Bosnia and Herzegovina ( , § 122). 7 ibid. , § 45), Res. 837 ( ibid. , § 52), Res. 865 ( ibid. , § 53) See, e.g., UN Security Council, Res. 587 ( ibid. and Res. 1099 ( , § 73). 8 UN Security Council, Res. 467 ( ibid. ibid. , § 47), Res. 804 ( ibid. , § 50), , § 44), Res. 788 and 813 ( Res. 819 ( ibid. , § 51), Res. 868 ( ibid. , § 54), Res. 897, 923 and 954 ( ibid. , § 55), Res. 913 ( ibid. , § 57), Res. 918 and 925 ( ibid. ibid. , § 59), Res. 946 ( ibid. , § 60), Res. 950 ( ibid. , , § 58), Res. 940 ( ibid. ibid. ibid. , § 63), Res. 994 ( § 61), Res. 987 ( , § 64), Res. 998 , § 62), Res. 993 and 1036 ( , § 67), Res. 1031 ( ibid. ( , § 66), Res. 1009 ( ibid. , § 65), Res. 1004 ( ibid. , § 69), Res. 1099 ( ibid. , ibid. § 73), Res. 1157 ( ibid. , § 75), Res. 1173 and 1180 ( ibid. , § 77), Res. 1206 ( ibid. , § 79) and Res. 1313 ( ibid. , § 103), Res. 1995/89 ( ibid. , , § 80); UN Commission on Human Rights, Res. 1994/72 ( ibid. ibid. , § 105). § 104) and Res. 1995/91 ( 9 ˇ ́ ́ zi Karad c and Mladi , § 125). c case , First Indictment ( ibid. ICTY,

175 114 personnel & objects in a peacekeeping mission Scope of application This rule applies only to peacekeeping forces, whether established by the United Nations or by a regional organisation, as long as they are entitled to the protection given to civilians and, as a result, excludes forces engaged in peace- enforcement operations who are considered as combatants bound to respect 10 international humanitarian law. 10 See, e.g., UN Secretary-General’s Bulletin, para. 1 ( ibid. , § 8).

176 chapter 10 JOURNALISTS Rule 34. Civilian journalists engaged in professional missions in areas of armed conflict must be respected and protected as long as they are not taking a direct part in hostilities. Practice Volume II, Chapter 10. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The protection of civilian journalists is set forth in Article 79 of Additional 1 Protocol I, to which no reservations have been made. 2 It is also supported by This rule is set forth in numerous military manuals. 3 official statements and reported practice. This practice includes that of States 4 not party to Additional Protocol I. Non-international armed conflicts Although Additional Protocol II does not contain any specific provision on civilian journalists, their immunity against attack is based on the prohibition on attacking civilians unless and for such time as they take a direct part in hostilities (see Rule 6). This conclusion is borne out by practice, even before the 1 Additional Protocol I, Article 79 (adopted by consensus) (cited in Vol. II, Ch. 10, § 1). 2 ibid. , § 4), Australia ( ibid. , § 5), Benin ( ibid. , See, e.g., the military manuals of Argentina ( § 6), Cameroon ( ibid. , § 7), Canada ( ibid. , § 8), France ( ibid. , § 9), Germany ( ibid. , § 10), Israel ( ibid. ibid. , § 12), Netherlands ( ibid. , § 13), New Zealand ( ibid. , § 14), Nigeria , § 11), Madagascar ( ibid. , § 15), Spain ( ibid. , § 16) and Togo ( ibid. , § 17). ( 3 See the statements of Brazil ( ibid. , § 22), Federal Republic of Germany ( ibid. , § 23) and United States ( , §§ 28–29) and the reported practice of Jordan ( ibid. , § 24), South Korea ( ibid. , § 25), ibid. Nigeria ( ibid. , § 26) and Rwanda ( ibid. , § 27). 4 See, e.g., the practice of Israel ( ibid. , § 11) and United States ( ibid. , §§ 28–29). 115

177 116 journalists adoption of the Additional Protocols. Brazil in 1971 and the Federal Republic of Germany in 1973 stated before the Third Committee of the UN General Assembly that journalists were protected as civilians under the principle of 5 distinction. The UN Commission on the Truth for El Salvador considered the murder of four Dutch journalists, accompanied by members of the FMLN, who were ambushed by a patrol of the Salvadoran armed forces, to be in violation of international humanitarian law, “which stipulates that civilians shall not 6 be the object of attacks”. In 1996, the Committee of Ministers of the Council of Europe reaffirmed the importance of Article 79 of Additional Protocol I, “which provides that journalists shall be considered as civilians and shall be protected as such”. It considered that “this obligation also applies with respect 7 to non-international armed conflicts”. The obligation to respect and protect civilian journalists is included in other 8 instruments pertaining also to non-international armed conflicts. It is con- tained in military manuals which are applicable in or have been applied in 9 non-international armed conflicts. It is supported by official statements and 10 reported practice. No official contrary practice was found with respect to either international or non-international armed conflicts. Deliberate attacks on journalists have gen- erally been condemned, in particular by the United Nations and other inter- national organisations, regardless of whether the conflict was international or non-international. Most of these condemnations concerned non-international armed conflicts such as in Afghanistan, Burundi, Chechnya, Kosovo and 11 Somalia. Loss of protection Like other civilians, journalists lose their protection against attack when and for such time as they take a direct part in hostilities (see Rule 6). This principle is also recognised in Article 79(2) of Additional Protocol I, which grants protection 5 ibid. , § 22) and Federal Republic of Germany ( See the statements of Brazil ( , § 23). ibid. 6 ibid. , § 41). UN Commission on the Truth for El Salvador, Report ( 7 ibid. , § 42). Council of Europe, Committee of Ministers, Rec. R (96) 4 ( 8 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 4 ( ibid. , § 2); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.3 ( ibid. , § 3). 9 See, e.g., the military manuals of Benin ( , § 6), Germany ( ibid. , § 10), Madagascar ( ibid. , ibid. ibid. § 12), Nigeria ( ibid. , § 17). , § 15) and Togo ( 10 See, e.g., the statements of Brazil ( ibid. , § 22), Federal Republic of Germany ( ibid. , § 23), Nigeria ( ibid. , § 26) and United States ( ibid. , §§ 28–29) and the reported practice of Jordan ( ibid. , § 24), South Korea ( , § 25) and Rwanda ( ibid. , § 27). ibid. 11 See, e.g., UN General Assembly, Res. 2673 (XXV), 2854 (XXVI), 3058 (XXVIII) and 3500 (XXX) ( ibid. , § 32), Res. 51/108 ( ibid. , § 33) and Res. 53/164 ( ibid. , § 34); UN Commission on Human Rights, Res. 1995/56 ( , § 36) and Res. 1996/1 ( ibid. , § 37); European Parliament, Resolu- ibid. tion on the situation in Kosovo ( ibid. , § 45) and Resolution on violations of human rights and humanitarian law in Chechnya ( ibid. , § 46).

178 Rule 34 117 to civilian journalists “provided that they take no action adversely affecting 12 their status”. This also implies that journalists, like any other person entering a foreign country, must respect that country’s domestic regulations concerning access to its territory. Journalists may lose their right to reside and work in a foreign country if they have entered illegally. In other words, the protection granted to journalists under international humanitarian law in no way changes the rules applicable to access to territory. Definition Civilian journalists are not to be confused with “war correspondents”. The latter are journalists who accompany the armed forces of a State without being members thereof. As a result, they are civilians and may not be made the object 13 Pursuant to Article 4(A)(4) of the Third Geneva Conven- of attack (see Rule 1). tion, however, war correspondents are entitled to prisoner-of-war status upon 14 capture. Respect for and protection of journalists In addition to the prohibition of attacks against journalists, there is also prac- tice which indicates that journalists exercising their professional activities in relation to an armed conflict must be protected. In 1996, the UN General Assembly called on all parties to the conflict in 15 Afghanistan to “ensure the safety” of representatives of the media. Other prac- tice condemns specific measures taken to dissuade journalists from carrying out their professional activities. In 1998, for example, the UN General Assembly called on parties to the conflict in Kosovo to refrain from any harassment and 16 intimidation of journalists. In 1995, the UN Commission on Human Rights deplored attacks, acts of reprisal, abductions and other acts of violence against 17 representatives of the international media in Somalia. Other acts which have been condemned include: police violence, threats of legal prosecutions and sub- 18 jection to defamation campaigns and physical violence; threats to treat the media as enemies serving foreign powers and denial of full and unhindered 12 ibid. , § 1). Additional Protocol I, Article 79(2) (adopted by consensus) ( 13 See, e.g., Additional Protocol I, Article 50(1) (adopted by consensus) (cited in Vol. II, Ch. 1, § 705). 14 Third Geneva Convention, Article 4(A)(4) (“persons who accompany the armed forces with- out actually being members thereof, such as . . . war correspondents . . . provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model” are entitled to prisoner- of-war status upon capture). 15 UN General Assembly, Res. 51/108 (cited in Vol. II, Ch. 10, § 33). 16 UN General Assembly, Res. 53/164 ( ibid. , § 34). 17 UN Commission on Human Rights, Res. 1995/56 ( ibid. , § 36). 18 Council of Europe, Parliamentary Assembly, Rec. 1368 ( ibid. , § 43) and Written Declaration No. 284 ( ibid. , § 44).

179 118 journalists 19 20 assaults upon freedom of the press and crimes against journalists; access; 21 killing, wounding and abduction; attacks, murder, unjustified imprisonment 22 23 and intimidation; and harassment, interference, detention and murder. It should be stressed that, as civilians, journalists are entitled to the fun- damental guarantees set out in Chapter 32. If they are accused of spying, for example, they must not be subjected to arbitrary detention (see Rule 99) and must be granted a fair trial (see Rule 100). 19 European Parliament, Resolution on the situation in Kosovo ( ibid. , § 45) and Resolution on violations of human rights and humanitarian law in Chechnya ( ibid. , § 46). 20 ibid. , § 47). OAS General Assembly, Res. 1550 (XXVIII-O/98) ( 21 90th Inter-Parliamentary Conference, Resolution on respect for international humanitarian law and support for humanitarian action in armed conflicts ( ibid. , § 49). 22 Committee to Protect Journalists, Attacks on the Press 2000 ( ibid. , § 59). 23 International Federation of Journalists, 22nd World Congress, Resolution on Angola ( ibid. , § 53).

180 chapter 11 PROTECTED ZONES Rule 35. Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited. Practice Volume II, Chapter 11, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts The First and Fourth Geneva Conventions provide for the possibility of setting up hospital and safety zones, and a draft agreement for the establishment of 1 such zones is attached thereto. In addition, the Fourth Geneva Convention 2 provides for the possibility of setting up neutralised zones. Both types of zone are intended to shelter the wounded, the sick and civilians from the effects of conflict, but the hospital and safety zones are meant to be far removed from military operations, whereas neutralised zones are intended for areas in which military operations are taking place. The relevant provisions of the Geneva Conventions are incorporated in many 3 military manuals, which emphasise that these zones must be respected. Under 4 the legislation of several States, it is an offence to attack such zones. 1 First Geneva Convention, Article 23 (cited in Vol. II, Ch. 11, § 1); Fourth Geneva Convention, Article 14, first paragraph ( ibid. , § 2). 2 Fourth Geneva Convention, Article 15 ( , § 3). ibid. 3 See, e.g., the military manuals of Argentina ( ibid. , §§ 6–7), Australia ( ibid. , § 8), Cameroon ( ibid. , § 9), Canada ( ibid. , § 10), Ecuador ( ibid. , § 11), France ( ibid. , §§ 12–13), Germany ( ibid. , § 14), Hungary ( ibid. ibid. , §§ 16–17), Kenya ( ibid. , § 18), Madagascar ( ibid. , § 19), , § 15), Italy ( Netherlands ( , § 20), New Zealand ( ibid. , § 21), Nigeria ( ibid. , § 22), Senegal ( ibid. , § 23), ibid. Spain ( ibid. , § 24), Sweden ( ibid. , § 25), Switzerland ( ibid. , §§ 26–27), United Kingdom ( ibid. , §§ 28–29), United States ( , §§ 30–33) and Yugoslavia ( ibid. , § 34). ibid. 4 See, e.g., the legislation of Colombia ( ibid. , § 36), Italy ( ibid. , § 37), Poland ( ibid. , § 40) and Spain ibid. ( , § 41); see also the draft legislation of Argentina ( ibid. , § 35), El Salvador ( ibid. , § 38) and Nicaragua ( ibid. , § 39). 119

181 120 protected zones In a resolution adopted in 1970 on basic principles for the protection of civilian populations in armed conflicts, the UN General Assembly stated that “places or areas designated for the sole protection of civilians, such as hospital 5 zones or similar refuges, should not be the object of military operations”. Zones providing shelter to the wounded, the sick and civilians have been agreed upon in both international and non-international armed conflicts, for example, during Bangladesh’s war of independence, the war in the South Atlantic and the conflicts in Cambodia, Chad, Cyprus, Nicaragua, Lebanon, 6 Sri Lanka and the former Yugoslavia. Most of these zones were established on the basis of a written agreement. These agreements were premised on the principle that zones established to shelter the wounded, the sick and civilians must not be attacked. The neutralised zone established at sea during the war in the South Atlantic (the so-called “Red Cross Box”) was done without any spe- cial agreement in writing. A zone which contains only wounded and sick (see Rule 47), medical and religious personnel (see Rules 25 and 27), humanitarian relief personnel (see Rule 31) and civilians (see Rule 1) may not be attacked by application of the specific rules protecting these categories of persons, applicable in both international and non-international armed conflicts. Rule 36. Directing an attack against a demilitarised zone agreed upon between the parties to the conflict is prohibited. Practice Volume II, Chapter 11, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts Making a demilitarised zone the object of attack is a grave breach of Additional 7 Protocol I. A demilitarised zone is generally understood to be an area, agreed upon between the parties to the conflict, which cannot be occupied or used 5 UN General Assembly, Res. 2675 (XXV) (adopted by 109 votes in favour, none against and 8 abstentions) ( , § 47). ibid. 6 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY ( , § 4); Agreement between Croatia and the SFRY on a Protected Zone around the ibid. Hospital of Osijek, Articles 1, 2(1) and 4(1) ( ibid. , § 5); the practice concerning the war in the South Atlantic ( ibid. , § 45), Bangladesh ( ibid. , § 53), Cyprus ( ibid. , § 55), Cambodia ( ibid. , § 56) and Sri Lanka ( ibid. , § 57); see also Franc ̧ ois Bugnion, The International Committee of the Red Cross and the Protection of War Victims , ICRC, Geneva, 2003, pp. 756–759 (providing examples from the conflicts in Bangladesh, Cyprus, Cambodia, Nicaragua, Chad and Lebanon among others). 7 Additional Protocol I, Article 85(3)(d) (adopted by consensus) (cited in Vol. II, Ch. 11, § 106).

182 Rule 36 121 for military purposes by any party to the conflict. Such a zone can be established in time of peace as well as in time of armed conflict. Article 60(3) of Additional Protocol I provides a blueprint for the terms of an agreement on a demilitarised zone, but any such agreement can be tailored to each specific situation, as 8 Article 60 recognises. The protection afforded to a demilitarised zone ceases if one of the parties commits a material breach of the agreement establishing 9 the zone. Practice indicates that international supervision is seen as an appro- 10 priate method of verifying that the conditions agreed upon are respected. The agreement may authorise the presence of peacekeeping forces or police person- nel for the sole purpose of maintaining law and order without the zone losing its demilitarised character. Numerous military manuals provide for the establishment of demilitarised 11 zones and prohibit their attack. Attacks against demilitarised zones are an 12 offence under the legislation of many States. Demilitarised zones have been set up in both international and non- international armed conflicts, for example, in the conflicts between India and Pakistan, North and South Korea, Israel and Syria, Israel and Egypt and Iraq and Kuwait, and the conflicts in Bosnia and Herzegovina, Colombia and 13 Nicaragua. Alleged violations of the status of a demilitarised zone have gen- 14 erally been condemned. 8 inter alia Additional Protocol I, Article 60(3) (adopted by consensus), provides, , that “the sub- ject of such an agreement shall normally be any zone which fulfils the following conditions: (a) all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated; (b) no hostile use shall be made of fixed military installations or establishments; (c) no acts of hostility shall be committed by the authorities or by the population; and (d) any activity linked to the military effort must have ceased”. 9 Additional Protocol I, Article 60(7) (adopted by consensus) (cited in Vol. II, Ch. 11, § 105). 10 ibid. , § 64), Agreement on See, e.g., the Disengagement Agreement between Israel and Syria ( ˇ Demilitarisation of Srebrenica and Zepa, Article 3 ( ibid. , § 67), the statement of Bosnia and ibid. Herzegovina ( ibid. , § 175). , § 169) and the reported practice of Pakistan ( 11 ibid. , § 108), Australia ( , § 109), Benin ( ibid. , See, e.g., the military manuals of Argentina ( ibid. , § 111), Canada ( ibid. , § 112), Croatia ( ibid. , § 113), Ecuador ( ibid. , § 110), Cameroon ( ibid. ibid. , § 115), Germany ( ibid. , § 116), Hungary ( ibid. , § 117), Italy ( ibid. , §§ 118– § 114), France ( ibid. 119), Kenya ( ibid. , § 121), New Zealand ( ibid. , § 122), Nigeria ( ibid. , , § 120), Netherlands ( , ibid. ibid. § 123), South Africa ( ibid. , § 126), Togo ( ibid. , § 124), Spain ( , § 125), Switzerland ( § 127), United States ( ibid. , §§ 128–130) and Yugoslavia ( ibid. , § 131). 12 See, e.g., the legislation of Armenia ( ibid. , § 133), Australia ( ibid. , §§ 134–135), Azerbaijan ( ibid. ibid. , § 137), Belgium ( ibid. , § 138), Bosnia and Herzegovina ( ibid. , § 139), , § 136), Belarus ( ibid. , § 140), Cook Islands ( , § 141), Croatia ( ibid. , § 142), Cyprus ( ibid. , § 143), Canada ( ibid. ibid. ibid. , § 146), Georgia ( ibid. , § 147), Germany ( ibid. , Czech Republic ( , § 144), Estonia ( ibid. , § 149), Ireland ( ibid. § 148), Hungary ( ibid. , § 153), Netherlands ( ibid. , , § 150), Lithuania ( § 154), New Zealand ( , § 155), Niger ( ibid. , § 157), Norway ( ibid. , § 158), Slovakia ( ibid. ibid. , § 159), Slovenia ( ibid. , § 160), Spain ( ibid. , § 161), Tajikistan ( ibid. , § 162), United Kingdom ( ibid. , § 163), Yemen ( ibid. , § 164), Yugoslavia ( ibid. , § 165) and Zimbabwe ( ibid. , § 166); see also the draft legislation of Argentina ( ibid. ibid. , § 145), Jordan ( ibid. , § 151), , § 132), El Salvador ( ibid. , § 156). ibid. Lebanon ( , § 152) and Nicaragua ( 13 See the Karachi Agreement, para. D ( ibid. , § 62); Panmunjom Armistice Agreement, Article I(6) and (10) ( ibid. , § 63); Disengagement Agreement between Israel and Syria ( ibid. , § 64); Peace Treaty between Israel and Egypt ( ibid. , § 66); Agreement on Demilitarisation of Srebrenica ˇ and Zepa ( ibid. , § 67); the practice of Colombia ( ibid. , § 89), Iraq and Kuwait ( ibid. , § 90) and Nicaragua ( ibid. , § 91). 14 See, e.g., UN Security Council, Statement by the President ( ibid. , § 94); UN Secretary-General, Report on UNIKOM ( ibid. , § 96); UN Secretary-General, Report on the UN Observer Mission

183 122 protected zones Rule 37. Directing an attack against a non-defended locality is prohibited. Practice Volume II, Chapter 11, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The concept of non-defended localities is rooted in the traditional concept of an “open town”. The prohibition on attacking undefended places was included 15 in the Brussels Declaration and the Oxford Manual. It was codified in Article 25 of the Hague Regulations, which provides that “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are un- 16 defended is prohibited”. The Report of the Commission on Responsibility set up after the First World War identifies “deliberate bombardment of unde- fended places” as a violation of the laws and customs of war which should be 17 subject to criminal prosecution. Under Additional Protocol I, it is prohibited to making a non-defended locality the object of attack and doing so is a grave 18 breach of the Protocol. Under the Statute of the International Criminal Court, “intentionally attacking towns, villages, dwellings or buildings which are un- defended and which are not military objectives” is a war crime in international 19 armed conflicts. The prohibition on attacking non-defended localities is contained in numer- 20 ous military manuals. Sweden’s IHL Manual identifies the chief rule relating to non-defended localities in Article 59 of Additional Protocol I as a codifi- 21 cation of pre-existing customary international law. Under the legislation of in Prevlaka ( ibid. , § 169) and North Korea ibid. , § 97); the practice of Bosnia and Herzegovina ( , § 173); the reported practice of Iran ( ibid. , § 172) and Pakistan ( ibid. , § 175). ( ibid. 15 ibid. Brussels Declaration, Article 15 ( ibid. , § 234). , § 233); Oxford Manual, Article 32(c) ( 16 ibid. 1907 Hague Regulations, Article 25 ( , § 228); see also the 1899 Hague Regulations, Article ibid. , § 227). 25 ( 17 Report of the Commission on Responsibility ( ibid. , § 235). 18 Additional Protocol I, Article 59(1) ( ibid. , § 230) and Article 85(3)(d) ( ibid. , § 231). 19 ICC Statute, Article 8(2)(b)(v) ( , § 232). ibid. 20 See, e.g., the military manuals of Argentina ( , §§ 241–242), Australia ( ibid. , § 243), Belgium ibid. ibid. , § 244), Bosnia and Herzegovina ( ibid. , § 245), Canada ( ibid. ( ibid. , , § 246), Croatia ( §§ 247–248), Ecuador ( ibid. , § 249), France ( ibid. , §§ 250–251), Germany ( ibid. , § 252), Hungary ( ibid. , § 253), Indonesia ( ibid. , § 254), Italy ( ibid. , §§ 255–256), Kenya ( ibid. , § 257), South Korea ( , §§ 258–259), Netherlands ( ibid. , §§ 260–261), New Zealand ( ibid. , § 262), Nigeria ( ibid. , ibid. § 263), Russia ( ibid. , § 264), South Africa ( ibid. , § 265), Spain ( ibid. , § 266), Sweden ( ibid. , § 267), Switzerland ( , § 268), United Kingdom ( ibid. , §§ 269–270), United States ( ibid. , §§ 271–276) ibid. and Yugoslavia ( ibid. , § 277). 21 Sweden, IHL Manual ( ibid. , § 267).

184 Rule 37 123 22 The pro- numerous States, it is an offence to attack non-defended localities. 23 hibition is also supported by official statements. This practice includes that 24 of States not, or not at the time, party to Additional Protocol I. Non-international armed conflicts The prohibition of attacks against non-defended localities is included in Article 3 of the Statute of the International Criminal Tribunal for the For- mer Yugoslavia, according to which the Tribunal is competent to prosecute violations of the laws or customs of war, including “attack, or bombardment, 25 by whatever means, of undefended towns, villages, dwellings, or buildings”. This rule is also contained in military manuals which are applicable in or 26 have been applied in non-international armed conflicts. Under the legislation of many States, it is an offence to attack non-defended localities in any armed 27 ˇ ́ conflict. si c and Others case , in which several persons Peri In 1997, in the were convicted of having ordered the shelling of Zadar and its surroundings, Croatia’s District Court of Zadar applied Article 25 of the Hague Regulations alongside common Article 3 of the Geneva Conventions and Articles 13–14 of 28 Additional Protocol II. 22 , § 279), Australia ( , §§ 280–282), Azerbaijan See, e.g., the legislation of Armenia ( ibid. ibid. , § 283), Belarus ( ibid. , § 284), Belgium ( ibid. , § 285), Bosnia and Herzegovina ( ibid. ( ibid. , § 286), ibid. , §§ 288–289), China ( ibid. , § 290), Congo ( ibid. , § 291), Cook Islands ( ibid. , § 292), Canada ( ibid. , § 293), Cyprus ( ibid. , § 294), Czech Republic ( ibid. Croatia ( ibid. , § 297), , § 295), Estonia ( Georgia ( , § 298), Germany ( ibid. , § 299), Hungary ( ibid. , § 300), Ireland ( ibid. , § 301), Lithu- ibid. ibid. , § 304), Mali ( , § 305), Netherlands ( ibid. , § 306–307), New Zealand ( ibid. , ania ( ibid. ibid. ibid. , § 312), Poland ( ibid. , § 313), Slovakia ( ibid. , §§ 308–309), Niger ( , § 311), Norway ( ibid. , § 315), Spain ( ibid. , § 316), Tajikistan ( ibid. , § 317), United Kingdom ( ibid. § 314), Slovenia ( , §§ 319–320), United States ( , § 321), Venezuela ( ibid. , § 322), Yugoslavia ( ibid. , § 323) and ibid. ibid. ibid. ibid. , § 278), Burundi ( Zimbabwe ( , , § 324); see also the draft legislation of Argentina ( ibid. § 287), El Salvador ( ibid. , § 302), Lebanon ( ibid. , § 303), Nicaragua ( ibid. , , § 296), Jordan ( § 310) and Trinidad and Tobago ( ibid. , § 318). 23 See, e.g., the statements of China ( , § 330), Egypt ( ibid. , § 332), Iran ( ibid. , § 336), Iraq ( ibid. , ibid. ibid. , § 340). § 337) and United States ( 24 ibid. ibid. , §§ 290 , § 283), China ( See, e.g., the practice and reported practice of Azerbaijan ( , § 250), Indonesia ( and 330), France ( , § 254), Iran ( ibid. , § 336), Iraq ( ibid. , § 337), ibid. ibid. ibid. , § 306), United Kingdom ( ibid. , §§ 269–270), and United States ( ibid. , Netherlands ( §§ 271–276, 321 and 340). 25 ibid. , § 238). ICTY Statute, Article 3(c) ( 26 See, e.g., the military manuals of Bosnia and Herzegovina ( , § 245), Croatia ( ibid. , ibid. ibid. , § 249), Germany ( ibid. , § 252), Italy ( ibid. , §§ 255–256), Kenya §§ 247–248), Ecuador ( , § 265) and Yugoslavia ( ibid. ibid. , § 259), South Africa ( ibid. , § 257), South Korea ( ibid. , ( § 277). 27 See, e.g., the legislation of Armenia ( ibid. , § 279), Azerbaijan ( ibid. , § 283), Belarus ( ibid. , § 284), Belgium ( ibid. ibid. , § 286), Croatia ( ibid. , § 293), Geor- , § 285), Bosnia and Herzegovina ( ibid. , § 304), Niger ( ibid. , § 299), Lithuania ( ibid. gia ( ibid. , § 311), Poland , § 298), Germany ( ( , § 313), Slovenia ( ibid. , § 315), Spain ( ibid. , § 316), Tajikistan ( ibid. , § 317), Venezuela ibid. ( ibid. , § 322) and Yugoslavia ( ibid. , § 323); see also the legislation of the Czech Republic ( ibid. , § 295), Hungary ( , § 300) and Slovakia ( ibid. , § 314), the application of which is not excluded ibid. in time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 278), El Salvador ( ibid. , § 296), Jordan ( ibid. , § 302) and Nicaragua ( ibid. , § 310). 28 ˇ ́ Croatia, District Court of Zadar, Peri si c and Others case ( ibid. , § 325).

185 124 protected zones While the concept of non-defended localities was specifically developed for international armed conflicts, it applies to non-international armed conflicts as well. This is especially so since the idea of prohibiting attacks on non-defended localities is based on the more general concept of military necessity: there is no need to attack a town, village, dwelling or building that is open for occu- pation. This rule is an application of the principle that no more destruction may be wrought upon an adversary than absolutely necessary, a rule which is also applicable in non-international armed conflicts (see Rule 50). As stated in Kenya’s LOAC Manual, under customary law “undefended localities that can 29 be occupied, cannot be bombarded”. No official contrary practice was found with respect to either international or non-international armed conflicts. Definition The UK Military Manual provides a useful description of an open or undefended town as one which is so completely undefended from within or without that the enemy may enter and take possession of it without fighting or incurring casualties. It follows that no town behind the immediate front line can be open or undefended for the attacker must fight his way to it. Any town behind the enemy front line is thus a defended town and is open to ground or other bombardment subject to the lim- itations imposed on all bombardments, namely, that . . . the latter must be limited to military objectives . . . Thus, the question of whether a town is or is not an open town is distinct from whether it does or does not contain military objectives. A town in the front line with no means of defence, not defended from outside and into which the enemy may enter and of which he may take possession at any time without fighting or incurring casualties, e.g., from crossing unmarked mine- fields, is undefended even if it contains munitions factories. On the other hand, all defended towns whether situated in the front line or not may be subjected to 30 bombardment. Article 59(2) of Additional Protocol I defines the concept of a non-defended locality as an “inhabited place near or in a zone where armed forces are in 31 contact which is open for occupation by an adverse Party”. This is essentially the same definition as that of an open town or undefended area under traditional customary international law. 29 Kenya, LOAC Manual ( ibid. , § 209). 30 United Kingdom, Military Manual ( ibid. , § 192). 31 Additional Protocol I, Article 59(2) (adopted by consensus) ( ibid. , § 202).

186 Rule 37 125 Article 59(2) of Additional Protocol I has clarified the procedure for declaring a locality to be undefended. This procedure is different from that of zones set up by agreement in that a party to the conflict may unilaterally declare a locality to be non-defended provided that: (1) all combatants, mobile weapons and mobile military equipment have been evacuated; (2) no hostile use is made of fixed military installations or establishments; (3) no acts of hostility are committed by the authorities or by the population; and (4) no activities in support of mil- 32 itary operations are undertaken. The other party shall acknowledge receipt of such a declaration and shall treat the locality as non-defended unless these 33 conditions are not (or no longer) fulfilled. This procedure is set forth in many 34 military manuals, including those of States not, or not at the time, party to 35 Additional Protocol I. Article 59(5) of Additional Protocol I nevertheless provides that the parties to the conflict may establish non-defended localities even if the above-mentioned 36 conditions are not fulfilled. It is obvious that the conclusion of an agreement provides greater certainty and allows the parties to establish the conditions as they see fit. Kenya’s LOAC Manual explains: [non-defended localities] can be established through a unilateral declaration and notification given to the enemy Party. However, for greater safety, formal agree- ments should be passed between the two Parties (under customary law and the Hague regulations undefended localities that can be occupied, cannot be bombarded 37 even if there is no notification). An attack against an area or locality without it being militarily necessary to do so would constitute a violation of the prohibition on destroying the property of an adversary, unless required by imperative military necessity (see Rule 50). 32 Additional Protocol I, Article 59(2) (adopted by consensus) ( , § 202). ibid. 33 Additional Protocol I, Article 59(4) (adopted by consensus), which states that “the declaration made under paragraph 2 shall be addressed to the adverse Party and shall define and describe, as precisely as possible, the limits of the non-defended locality. The Party to the conflict to which the declaration is addressed shall acknowledge its receipt and shall treat the locality as a non-defended locality unless the conditions laid down in paragraph 2 are not in fact fulfilled, in which event it shall immediately so inform the Party making the declaration. Even if the conditions laid down in paragraph 2 are not fulfilled, the locality shall continue to enjoy the protection provided by the other provisions of this Protocol and the other rules of international law applicable in armed conflict”. 34 ibid. See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 11, § 204), Australia ( , ibid. , § 206), France ( ibid. , § 207), Germany ( ibid. , § 208), Indonesia ( § 205), Canada ( , ibid. § 254), Kenya ( ibid. , § 209), Netherlands ( ibid. , § 210), New Zealand ( ibid. , § 211), Sweden ( ibid. , § 212), Switzerland ( ibid. , § 213), United States ( ibid. , § 214) and Yugoslavia ( ibid. , § 215). 35 See, e.g., the military manuals of Kenya ( ibid. , § 209), Indonesia ( ibid. , § 254) and United States ( ibid. , § 214). 36 Additional Protocol I, Article 59(5) (adopted by consensus) ( ibid. , § 202). 37 Kenya, LOAC Manual ( ibid. , § 209).

187 126 protected zones A locality loses its protection from attack when it ceases to fulfil the required conditions. According to Article 59(3) of Additional Protocol I, the presence of persons afforded special protection and of police forces retained for the sole 38 purpose of maintaining law and order is not contrary to these conditions. 38 Additional Protocol I, Article 59(3) (adopted by consensus) ( ibid. , § 202).

188 chapter 12 CULTURAL PROPERTY Rule 38. Each party to the conflict must respect cultural property: A. Special care must be taken in military operations to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments unless they are military objectives. B. Property of great importance to the cultural heritage of every people must not be the object of attack unless imperatively required by military necessity. Practice Volume II, Chapter 12, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Cultural property in general To the extent that cultural property is civilian, it may not be made the object of attack (see Rule 7). It may only be attacked in case it qualifies as a military objective (see Rule 10). The Statute of the International Criminal Court there- fore stresses that intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes or historic monuments is a war crime in both international and non-international armed conflicts, 1 “provided they are not military objectives”. The obligation to take special care to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments, provided they are not used for military purposes, is set forth in many mili- 2 tary manuals. It is also restated in the legislation of numerous States, under 1 ICC Statute, Article 8(2)(b)(ix) and (e)(iv) (cited in Vol. II, Ch. 12, § 19). 2 See, e.g., the military manuals of Argentina ( ibid. , § 40), Australia ( ibid. , §§ 41–42), Belgium ( , §§ 43–44), Burkina Faso ( ibid. , § 47), Cameroon ( ibid. , § 49), Congo ( ibid. , § 53), ibid. Dominican Republic ( ibid. , § 56), Ecuador ( ibid. , § 57), France ( ibid. , § 58), Germany ( ibid. , § 62), Indonesia ( ibid. , § 65), Israel ( ibid. , § 67), South Korea ( ibid. , § 71), Mali ( ibid. , § 74), 127

189 128 cultural property 3 Attacks against such which it is a punishable offence to attack such objects. objects have been condemned by States, the United Nations and other interna- tional organisations, for example, with respect to the conflicts in Afghanistan and Korea, between Iran and Iraq and in the Middle East and the former 4 Yugoslavia. While in any attack against a military objective, all feasible precautions must be taken to avoid, and in any event, to minimise incidental damage to civilian objects (see Rule 15), special care is required to avoid damage to some of the most precious civilian objects. This requirement was already recognised in the Lieber Code, the Brussels Declaration and the Oxford Manual and was codified 5 in the Hague Regulations. The Report of the Commission on Responsibility set up after the First World War identified the “wanton destruction of religious, charitable, educational and historic buildings and monuments” as a violation 6 of the laws and customs of war subject to criminal prosecution. 7 The requirement of special care has also been invoked in official statements. The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, called on all parties to an armed conflict to protect cultural property and places of worship, in addition 8 to respecting the total ban on directing attacks against such objects. , § 75), New Zealand ( Morocco ( , § 79), Nigeria ( ibid. , § 81), Russia ( ibid. , § 84), Senegal ibid. ibid. ibid. , § 85), Sweden ( , § 88), United Kingdom ( ibid. , §§ 93–94) and United States ( ibid. , ( ibid. §§ 95–102). 3 ibid. See, e.g., the legislation of Argentina ( ibid. , § 109), Azerbaijan ( ibid. , , § 105), Australia ( § 110), Bosnia and Herzegovina ( , § 113), Bulgaria ( ibid. , § 114), Canada ( ibid. , § 117), Chile ibid. ibid. ibid. , § 119), Colombia ( ibid. , § 120), Congo ( ibid. , § 122), Croatia ( ibid. , ( , § 118), China ( ibid. , § 128), Estonia ( ibid. , § 130), Germany ( ibid. , § 132), Italy § 124), Dominican Republic ( ( ibid. ibid. , § 138), Mali ( ibid. , § 142), Mexico ( ibid. , § 143), Netherlands , § 135), Kyrgyzstan ( ( , §§ 144–145), New Zealand ( ibid. , § 147), Nicaragua ( ibid. , § 148), Paraguay ( ibid. , § 152), ibid. Peru ( ibid. , § 153), Poland ( ibid. , § 154), Romania ( ibid. , § 155), Russia ( ibid. , § 156), Slovenia ( ibid. ibid. , § 160), United Kingdom ( ibid. , § 167), United States ( ibid. , § 168), , § 158), Spain ( ibid. , § 169), Venezuela ( , § 170) and Yugoslavia ( ibid. , § 171); see also the draft Uruguay ( ibid. , § 115) and Trinidad and Tobago ( ibid. , § 165). legislation of Burundi ( ibid. 4 ibid. , § 181), China ( ibid. , § 183), Croatia ( ibid. , § 185), See, e.g., the practice of Cape Verde ( France ( ibid. ibid. , § 194), Iran ( ibid. , § 202), Pakistan ( ibid. , § 215), United , § 192), Germany ( ibid. , § 219) and Yugoslavia ( ibid. , §§ 237–239); UN Security Council, Res. 1265 Arab Emirates ( ( , § 244); UN General Assembly, Res. 47/147, 49/196 and 50/193 ( ibid. , § 245); UN Com- ibid. mission on Human Rights, Res. 1984/1, 1985/1, 1986/1, 1987/2, 1988/1, 1989/2 and 1986/43 ( ibid. , § 247), Res. 1994/72 ( ibid. , § 248) and Res. 1998/70 ( ibid. , § 249); UNESCO, General Con- ference, Res. 4.8 ( ibid. ibid. , § 260) and , § 251); OIC, Contact Group on Jammu and Kashmir ( ibid. ibid. , Res. 1/5-EX ( , § 261); Islamic Summit Conference, Ninth Session, Res. 25/8-C (IS) ( § 266). 5 ibid. , § 25); Brussels Declaration, Article 17 ( Lieber Code, Article 35 ( , § 26); Oxford Manual, ibid. Article 34 ( ibid. , § 27); Hague Regulations, Article 27 ( ibid. , §§ 1–2). 6 Report of the Commission on Responsibility ( ibid. , § 28). 7 ibid. , § 178), Egypt ( ibid. , § 186), France ( ibid. , § 189), Israel See, e.g., the statements of Austria ( ( ibid. , § 205), United Kingdom ( ibid. , §§ 220 and 222–225), United States ( ibid. , §§ 226 and 231–233) and Yugoslavia ( ibid. , § 236). 8 27th International Conference of the Red Cross and Red Crescent, Plan of Action for the years 2000–2003 (adopted by consensus) ( ibid. , § 265).

190 Rule 38 129 Property of great importance to the cultural heritage of every people With respect to property of “great importance to the cultural heritage of every people”, the Hague Convention for the Protection of Cultural Property has sought to reinforce its protection by encouraging the marking of such property 9 with a blue-and-white shield, but also by limiting the lawfulness of attacks to very exceptional situations where a waiver can be invoked in case of “impera- 10 tive military necessity”. At the time of writing, the Hague Convention was ratified by 111 States. The fundamental principles of protecting and preserving cultural property in the Convention are widely regarded as reflecting customary international law, as stated by the UNESCO General Conference and by States which are not party to 11 the Convention. The application of the Hague Convention under customary international law to non-international armed conflicts was recognised by the ́ c case in International Criminal Tribunal for the Former Yugoslavia in the Tadi 12 1995. Many military manuals specify the obligation to respect and protect property 13 of great importance to the cultural heritage of every people. These include 14 manuals of States not, or not at the time, party to the Hague Convention. Under the legislation of numerous States, it is an offence to attack property of 15 great importance to the cultural heritage of every people. 9 Hague Convention for the Protection of Cultural Property, Articles 6 and 16. 10 Hague Convention for the Protection of Cultural Property, Article 4(2) (cited in Vol. II, Ch. 12, § 7). 11 UNESCO, General Conference, Res. 3.5 ( Annotated Supplement to ibid. , § 250); United States, ( ibid. , § 103). the US Naval Handbook 12 ́ , Interlocutory Appeal ( c case ICTY, Tadi , § 268). ibid. 13 ibid. , § 40), Australia ( , §§ 41–42), Benin ( ibid. , See, e.g., the military manuals of Argentina ( ibid. , §§ 50–51), Colombia ( ibid. , § 52), Croatia ( ibid. , §§ 54–55), France ( ibid. , § 45), Canada ( ibid. ibid. ibid. , § 64), Israel ( ibid. , § 67), Italy ( ibid. , §§ 59–61), Germany ( , §§ 62–63), Hungary ( §§ 68–69), Kenya ( , § 70), South Korea ( ibid. , § 72), Madagascar ( ibid. , § 73), Netherlands ibid. ( , §§ 76–77), New Zealand ( ibid. , § 79), Philippines ( ibid. , §§ 82–83), Russia ( ibid. , § 84), ibid. ibid. , § 86), Spain ( ibid. , § 87), Sweden ( ibid. , § 89), Switzerland ( ibid. , §§ 90–91), South African ( Togo ( ibid. , § 92) and United States ( ibid. , § 103) and the reported practice of Israel ( ibid. , § 66). 14 See, e.g., the military manuals of Benin ( , § 45), Colombia ( ibid. , § 52), Croatia ( ibid. , ibid. ibid. , § 70), South Korea ( , § 72), New Zealand ( ibid. , § 79), Philippines § 55), Kenya ( ibid. , §§ 82–83), Togo ( ibid. , § 92), United Kingdom ( ibid. , §§ 93–94) and United States ( ibid. , ( ibid. § 103). 15 ibid. ibid. See, e.g., the legislation of Armenia ( , § 108), Belarus ( ibid. , § 111), , § 107), Australia ( ibid. ibid. ibid. , § 113), Canada ( Belgium ( , § 116), Colombia , § 112), Bosnia and Herzegovina ( ibid. ( ibid. , § 123), Croatia ( ibid. , § 124), Cuba ( ibid. , § 125), Cyprus , § 121), Cook Islands ( ( ibid. , § 126), Czech Republic ( ibid. , § 127), Georgia ( ibid. , § 131), Hungary ( ibid. , § 133), Ireland ( ibid. ibid. , § 139), Lithuania ( ibid. , § 141), Netherlands ( ibid. , § 145), New , § 134), Latvia ( Zealand ( , § 146), Niger ( ibid. , § 150), Norway ( ibid. , § 151), Poland ( ibid. , § 154), Romania ibid. ( ibid. , § 155), Russia ( ibid. , § 156), Slovakia ( ibid. , § 157), Slovenia ( ibid. , § 158), Spain ( ibid. , §§ 159–160), Sweden ( , § 161), Switzerland ( ibid. , § 162), Tajikistan ( ibid. , § 164), United ibid. Kingdom ( ibid. , § 166), Yugoslavia ( ibid. , § 171) and Zimbabwe ( ibid. , § 172); see also the draft , § 137), Lebanon legislation of Argentina ( , § 106), El Salvador ( ibid. , § 129), Jordan ( ibid. ibid. ( ibid. , § 140) and Nicaragua ( ibid. , § 149).

191 130 cultural property Waiver in case of imperative military necessity The Second Protocol to the Hague Convention for the Protection of Cultural Property, adopted by consensus in 1999, brings the Hague Convention up to date in the light of developments in international humanitarian law since 1954. It is significant in this respect that the Second Protocol has maintained the waiver in case of imperative military necessity, as requested by many States during the preparatory meetings, but has sought to clarify its meaning. It pro- vides that a waiver on the basis of imperative military necessity may only be invoked when and for as long as: (1) the cultural property in question has, by its function, been made into a military objective; and (2) there is no feasible alternative to obtain a similar military advantage to that offered by attack- 16 ing that objective. The Second Protocol further requires that the existence of such necessity be established at a certain level of command and that in case of an attack, an effective advance warning be given whenever circum- 17 stances permit. During the negotiation of the Second Protocol, this interpre- tation of the waiver in case of imperative military necessity was uncontro- versial. This rule should not be confused with the prohibition on attacking cultural property contained in Article 53(1) of Additional Protocol I and Article 16 of Additional Protocol II, which do not provide for a waiver in case of imperative 18 military necessity. As underlined by numerous statements at the Diplomatic Conference leading to the adoption of the Additional Protocols, these articles were meant to cover only a limited amount of very important cultural property, namely that which forms part of the cultural or spiritual heritage of “peoples” (i.e., mankind), while the scope of the Hague Convention is broader and covers 19 property which forms part of the cultural heritage of “every people”. The property covered by the Additional Protocols must be of such importance that it will be recognised by everyone, even without being marked. At the Diplomatic Conference leading to the adoption of the Additional Protocols, several States indicated that notwithstanding the absence of a waiver, such highly important cultural property could become the object of attack in case it was used, illegally, 20 for military purposes. 16 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 6(a) ( ibid. , § 21). 17 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 6(c) ibid. , § 21). and (d) ( 18 ibid. Additional Protocol I, Article 53(1) (adopted by consensus) ( , § 10); Additional Proto- col II, Article 16 (adopted by 35 votes in favour, 15 against and 32 abstentions) ( ibid. , § 18). 19 See, e.g., the statements of Australia ( ibid. , § 175), Canada ( ibid. , § 180), Federal Republic of Germany ( , § 193), Netherlands ( ibid. , §§ 210–211), United Kingdom ( ibid. , § 220) and ibid. United States ( ibid. , § 227). 20 See, e.g., the statements of the Federal Republic of Germany ( ibid. , § 193), Netherlands ( ibid. , § 210), United Kingdom ( ibid. , § 220) and United States ( ibid. , § 227).

192 Rule 39 131 Rule 39. The use of property of great importance to the cultural heritage of every people for purposes which are likely to expose it to destruction or damage is prohibited, unless imperatively required by military necessity. Practice Volume II, Chapter 12, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts This rule is contained in Article 4 of the Hague Convention for the Protec- tion of Cultural Property, a provision applicable to both international and 21 non-international armed conflicts. The fundamental principles of protecting and preserving cultural property in the Hague Convention are widely regarded as reflecting customary international law, as stated by the UNESCO General 22 Conference and by States which are not party to the Convention. Its appli- cation under customary international law to non-international armed con- flicts was recognised by the International Criminal Tribunal for the Former 23 ́ Tadi . Yugoslavia in the c case In addition, this rule is contained in other instru- 24 ments pertaining also to non-international armed conflicts. The prohibition on using property of great importance to the cultural her- itage of every people for purposes which are likely to expose it to destruction or damage unless imperatively required by military necessity is set forth in 25 numerous military manuals. These include manuals of States not party to 26 the Hague Convention. In addition, several military manuals state that the 27 use of a privileged building for improper purposes constitutes a war crime. 21 Hague Convention for the Protection of Cultural Property, Article 4 ( ibid. , § 282) and Article 19 ( , § 283). ibid. 22 ibid. , § 347) and United States, Annotated See, e.g., UNESCO General Conference, Res. 3.5 ( Supplement to the Naval Handbook ibid. , § 329). ( 23 ́ Tadi , § 351). c case , Interlocutory Appeal ( ibid. ICTY, 24 See, e.g., UN Secretary-General’s Bulletin, Section 6.6 ( , § 300). ibid. 25 See, e.g., the military manuals of Argentina ( , § 301), Australia ( ibid. , § 302), Canada ( ibid. , ibid. ibid. , § 305), Germany ( ibid. , §§ 306–307), Israel ( §§ 303–304), Croatia ( , § 308), Italy ( ibid. , ibid. §§ 309–310), Kenya ( ibid. , § 311), Netherlands ( ibid. , §§ 312–313), New Zealand ( ibid. , § 314), Nigeria ( ibid. , § 316), Russia ( ibid. , § 317), South Africa ( ibid. , § 318), Spain ( ibid. , § 319), Sweden ( ibid. ibid. , §§ 321–322) and United States ( ibid. , §§ 324–329). , § 320), Switzerland ( 26 See, e.g., the military manuals of Kenya ( ibid. , § 311), South Africa ( ibid. , § 318) and United States ( ibid. , §§ 324–329). 27 ibid. ibid. , § 303), New Zealand ( ibid. , § 314), Nigeria ( See, e.g., the military manuals of Canada ( , § 315), United Kingdom ( ibid. , § 323) and United States ( ibid. , §§ 324–325 and 327).

193 132 cultural property There are also specific references in State practice to the prohibition on using 28 cultural property in order to shield military operations. Waiver in case of imperative military necessity The Second Protocol to the Hague Convention for the Protection of Cultural Property has clarified the meaning of the waiver in case of imperative mil- itary necessity with regard to the use of cultural property. It considers that a waiver on the basis of imperative military necessity may only be invoked to use cultural property for purposes which are likely to expose it to destruc- tion or damage “when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a sim- 29 ilar military advantage”. The Protocol further requires that the existence of 30 such necessity be established at a certain level of command. At the nego- tiation of the Second Protocol, this interpretation did not give rise to any controversy. This rule should not be confused with the prohibition on using cultural prop- erty contained in Article 53(2) of Additional Protocol I and Article 16 of Addi- tional Protocol II, which do not provide for a waiver in case of imperative military necessity. As underlined by numerous statements at the Diplomatic Conference leading to the adoption of the Additional Protocols, these articles were meant to cover only a limited amount of very important cultural property, namely that which forms part of the cultural or spiritual heritage of “peoples” (i.e., mankind), while the scope of the Hague Convention is broader and cov- 31 ers property which forms part of the cultural heritage of “every people”. The property covered by the Additional Protocols must be of such importance that it will be recognised by everyone, even without being marked. Rule 40. Each party to the conflict must protect cultural property: A. All seizure of or destruction or wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science is prohibited. B. Any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, property of great importance to the cultural heritage of every people is prohibited. 28 See, e.g., the military manual of Israel ( , § 308); the statements of the United States ( ibid. , ibid. ibid. , § 349). §§ 345–346); OSCE, Europe Spillover Monitoring Mission to Skopje, Press Release ( 29 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 6(b) ( ibid. , § 291). 30 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 6(c) ( ibid. , § 21). 31 ibid. , § 175), Canada ( ibid. , § 180), Federal Republic of See, e.g., the statements of Australia ( Germany ( ibid. , § 193), Netherlands ( ibid. , §§ 210–211), United Kingdom ( ibid. , § 220) and United States ( ibid. , § 227).

194 Rule 40 133 Practice Volume II, Chapter 12, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Seizure of or destruction or wilful damage to cultural property Article 56 of the Hague Regulations prohibits “all seizure of, and destruction, or intentional damage done to” institutions dedicated to religion, charity, educa- 32 tion, the arts and sciences, historic monuments and works of art and science. The violation of this provision was included among the violations of the laws and customs of war in the Statute of the International Criminal Tribunal for 33 the Former Yugoslavia over which the Tribunal has jurisdiction. Under the Statute of the International Criminal Court, destruction of buildings dedicated to religion, education, arts, science or charitable purposes and historic monu- ments and destruction and seizure that is not imperatively demanded by the necessities of the conflict constitute war crimes in both international and non- 34 international armed conflicts. 35 Under the legislation Many military manuals incorporate this provision. of many States, it is an offence to seize, destroy or wilfully damage cultural 36 property. After the Second World War, France’s Permanent Military Tribunal at Metz in the in 1947 and the US Military Tribunal at Lingenfelder case Nuremberg in the in 1948 and the Von Leeb (The High Command Trial) case in 1949 convicted the accused of seizure and destruction of Weizsaecker case 37 cultural property. 32 Hague Regulations, Article 56 ( ibid. , §§ 355–356). 33 ibid. , § 366). ICTY Statute, Article 3(d) ( 34 ICC Statute, Article 8(2)(b)(ix) ( ibid. , § 19) and Article 8(2)(b)(xiii) (cited in Vol. II, Ch. 16, § 55), Article 8(2)(e)(iv) (cited in Vol. II, Ch. 12, § 19) and Article 8(2)(e)(xii) (cited in Vol. II, Ch. 16, § 56). 35 See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 12, § 371), Australia ( ibid. , § 372), Canada ( ibid. , §§ 373–374), Germany ( ibid. , §§ 375–376), Italy ( ibid. , § 378), Netherlands ( ibid. ibid. , § 381), Nigeria ( ibid. , §§ 382–383), Sweden ( ibid. , § 384), , §§ 379–380), New Zealand ( ibid. ibid. United Kingdom ( , §§ 387–388). , § 386) and United States ( 36 See, e.g., the legislation of Bulgaria ( , § 389), Estonia ( ibid. , § 392), Italy ( ibid. , § 393), ibid. Luxembourg ( ibid. , § 395), Netherlands ( ibid. , § 396), Nicaragua ( ibid. , § 397), Poland ( ibid. , § 399), Portugal ( ibid. ibid. , § 401), Spain ( ibid. , § 402) and Switzerland , § 400), Romania ( ( , § 403); see also the draft legislation of El Salvador ( ibid. , § 391) and Nicaragua ( ibid. , ibid. § 398). 37 France, Permanent Military Tribunal at Metz, ( ibid. , § 405); United States, Lingenfelder case Military Tribunal at Nuremberg, Von Leeb (The High Command Trial) case ( ibid. , § 406) and Weizsaecker case ( ibid. , § 407).

195 134 cultural property Theft, pillage, misappropriation and acts of vandalism Theft, pillage, misappropriation and acts of vandalism are prohibited in Article 4 of the Hague Convention for the Protection of Cultural Property, a pro- 38 vision applicable to both international and non-international armed conflicts. The fundamental principles of protecting and preserving cultural property in the Hague Convention are widely regarded as reflecting customary interna- tional law, as stated by the UNESCO General Conference and by States which 39 are not party to the Convention. Its application under customary interna- tional law to non-international armed conflicts was recognised by the Interna- 40 ́ in 1995. Tadi tional Criminal Tribunal for the Former Yugoslavia in the c case In addition, this rule is contained in other instruments pertaining also to non- 41 international armed conflicts. The obligation to respect cultural property is set forth in numerous military 42 manuals. Failure to respect cultural property is an offence under the legis- 43 lation of numerous States. The rule is also supported by official statements 44 made by States not, or not at the time, party to the Hague Convention. The prohibition of pillage of cultural property is a specific application of the general prohibition of pillage (see Rule 52). No official contrary practice was found. Violations of this rule have generally 45 been denounced by States. The United Nations and other international organ- isations have also condemned such acts. In 1998, for example, the UN Commis- sion on Human Rights expressed its deep concern over reports of the destruction and looting of the cultural and historical heritage of Afghanistan, a State not party to the Hague Convention for the Protection of Cultural Property, and 46 urged all the Afghan parties to protect and safeguard such heritage. In 2001, there was widespread condemnation, in particular by UNESCO, of the Taliban 38 , § 357) and Article Hague Convention for the Protection of Cultural Property, Article 4 ( ibid. ibid. , § 358). 19 ( 39 , § 419); United States, Annotated Sup- ibid. See, e.g., UNESCO General Conference Res. 3.5 ( ( ibid. , § 388). plement to the Naval Handbook 40 ́ ICTY, c case , Interlocutory Appeal ( ibid. , § 428). Tadi 41 See, e.g., UN Secretary-General’s Bulletin, Section 6.6 ( , § 370). ibid. 42 See, e.g., the military manuals of Argentina ( ibid. , § 371), Australia ( ibid. , § 372), Canada ( ibid. , §§ 373–374), Germany ( ibid. , §§ 375–376), Israel ( ibid. , § 377), Italy ( ibid. , § 378), Netherlands ( ibid. ibid. , § 381), Nigeria ( ibid. , §§ 382–383), Sweden , §§ 379–380), New Zealand ( ibid. ibid. , § 385), United Kingdom ( ibid. , § 386) and United States ( ibid. , ( , § 384), Switzerland ( §§ 387–388). 43 ibid. , § 389), China ( See, e.g., the legislation of Bulgaria ( , § 390), Estonia ( ibid. , § 392), ibid. Italy ( ibid. , § 393), Lithuania ( ibid. , § 394), Luxembourg ( ibid. , § 395), Netherlands ( ibid. , § 396), Nicaragua ( ibid. , § 397), Poland ( ibid. , § 399), Portugal ( ibid. , § 400), Romania ( ibid. , § 401), Spain ( ibid. ibid. , § 403) and Ukraine ( ibid. , § 404); see also the draft legislation , § 402), Switzerland ( ibid. ibid. of El Salvador ( , § 398). , § 391) and Nicaragua ( 44 ibid. , § 408), China ( ibid. , §§ 410–411) and United States See, e.g., the statements of Azerbaijan ( ( ibid. , § 414). 45 , § 412) ibid. , § 408), China ( ibid. , §§ 410–411), Iran ( ibid. See, e.g., the statements of Azerbaijan ( and United States ( ibid. , § 414). 46 UN Commission on Human Rights, Res. 1998/70 ( ibid. , § 418).

196 Rule 41 135 regime’s decision to destroy a dozen ancient statues belonging to the Afghan 47 National Museum and subsequently to destroy the Buddhas of Bamiyan. Rule 41. The occupying power must prevent the illicit export of cultural property from occupied territory and must return illicitly exported property to the competent authorities of the occupied territory. Practice Volume II, Chapter 12, Section D. Summary State practice establishes this rule as a norm of customary international law applicable in international armed conflicts. Export of cultural property from occupied territory The obligation to prevent the exportation of cultural property from occupied territory is set forth in paragraph 1 of the First Protocol to the Hague Con- vention for the Protection of Cultural Property, to which 88 States are party, 48 including States specially affected by occupation. This rule is also contained in Article 2(2) of the Convention on the Illicit Trade in Cultural Property, under which States undertake to oppose the illicit import, export and transfer of own- ership of cultural property “with the means at their disposal, and particularly by removing their causes, putting a stop to current practices, and by helping 49 to make the necessary reparations”. Article 11 of the Convention states that “the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power 50 shall be regarded as illicit”. The Convention has been ratified by 104 States, 37 of which are not party to the First Protocol to the Hague Convention for the Protection of Cultural Property. Since 88 States are party to the latter, this means that a total of 125 States have adhered to a treaty obligation to respect this rule. In addition, Article 9(1) of the Second Protocol to the Hague Conven- tion requires that an occupying power prohibit and prevent “any illicit export, other removal or transfer of ownership of cultural property”, while Article 21 51 requires States to suppress these violations. The inclusion of these rules in 47 ibid. See, e.g., UNESCO, Press Release No. 2001–27 ( , § 421) and Press Release No. 2001–38 ( ibid. , § 422). 48 First Protocol to the Hague Convention for the Protection of Cultural Property, para. 1 ( ibid. , § 431). 49 Convention on the Illicit Trade in Cultural Property, Article 2(2) ( ibid. , § 455). 50 Convention on the Illicit Trade in Cultural Property, Article 11 ( ibid. , § 433). 51 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 9(1) ( ibid. , § 434) and Article 21 ( ibid. , § 435).

197 136 cultural property the Second Protocol during the negotiations leading to its adoption was uncon- troversial. In the London Declaration in 1943, the Allied governments warned that they would regard any transfer of property rights, including of cultural 52 property, as illegal. Other practice supporting this rule includes military manuals, national legis- 53 lation and official statements. While this practice concerns States party to the First Protocol to the Hague Convention for the Protection of Cultural Property, it can nevertheless be concluded that the prohibition on exporting cultural property is customary because, in addition to support for this rule found in the practice mentioned above, this obligation is inherent in the obligation to respect cultural property, and particularly in the prohibition on seizing cultural a fortiori it property (see Rule 40). If cultural property may not be seized, then may not be exported. No official contrary practice was found. Return of cultural property exported from occupied territory Several treaties concluded after the Second World War dealt with the restoration of cultural property exported during occupation. Under the Treaty of Peace between the Allied and Associated Powers and Italy concluded in 1947, Italy 54 was obliged to return cultural property to Yugoslavia and Ethiopia. Under the Convention on the Settlement of Matters Arising out of the War and the Occupation adopted in 1952, Germany was to set up an agency to search for, recover and restitute cultural property taken from occupied territory during 55 the Second World War. The obligation to return cultural property which has been illegally exported from occupied territory is set forth in Paragraph 3 of the First Protocol to the Hague Convention for the Protection of Cultural Property, 56 which has been ratified by 88 States. Paragraph 3 of the First Protocol to the Hague Convention is formulated more generally as applicable to all parties to the Protocol and not only to the occupy- 57 ing power. However, no practice was found on the obligation of third parties to 52 London Declaration ( ibid. , § 437). 53 See, e.g., Germany, ( ibid. , § 440); Luxembourg, Law on the Repression of War Military Manual ( , , § 441); Israel, Military Court of Hebron, judgements under Jordanian law ( ibid. Crimes ibid. ibid. § 442); statements of Iraq ( ibid. , § 468); Islamic Summit Conference, , § 443) and Kuwait ( Ninth Session, Res. 25/8-C (IS) ( ibid. , § 446). 54 Treaty of Peace between the Allied and Associated Powers and Italy, Article 12 ( ibid. , § 472) and Article 37 ( , § 450). ibid. 55 Convention on the Settlement of Matters Arising out of the War and the Occupation, Chapter Five, Article 1, para. 1 ( ibid. , § 452). 56 First Protocol to the Hague Convention for the Protection of Cultural Property, para. 3 ( ibid. , § 453). 57 See First Protocol to the Hague Convention for the Protection of Cultural Property, para. 3, which states that “each High Contracting Party undertakes to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory, if such property has been exported in contravention of the principle laid down in the first paragraph. Such property shall never be retained as war reparations.” ( ibid. , § 453).

198 Rule 41 137 return cultural property illicitly exported and present on their territory. Hence this rule is formulated more narrowly as applicable, at least, to the occupying power itself, which having failed in its duty to prevent the exportation must remedy this failure by returning the property. According to paragraph 4 of the 58 Protocol, possible holders of the property in good faith must be compensated. The obligation to return exported cultural property is also recognised in many official statements, including by Germany in relation to its occupation during 59 the Second World War and by Iraq in relation to its occupation of Kuwait. In the context of the Gulf War, the UN Security Council urged Iraq on several 60 occasions to return to Kuwait all property seized. In 2000, the UN Secretary- General noted that a substantial quantity of property had been returned since the end of the Gulf War but that many items remained to be returned. He stressed that “priority should be given to the return by Iraq of the Kuwaiti 61 archives . . . and museum items”. While this practice concerns States party to the First Protocol to the Hague Convention for the Protection of Cultural Property, it can nevertheless be concluded that the obligation to return illicitly exported cultural property is customary because, in addition to support for this rule found in the practice mentioned above, it is also inherent in the obligation to respect cultural property, and particularly in the prohibition on seizing and pillaging cultural property (see Rule 40). If cultural property may not be seized or pillaged, then a fortiori it may not be held back in case it has been illegally exported. Restitution of illegally exported property would also constitute an appropriate form of reparation (see Rule 150). No official contrary practice was found. Retention of cultural property as war reparations Paragraph 3 of the First Protocol to the Hague Convention for the Protection of Cultural Property specifies that cultural property shall never be retained as war 62 In 1997, however, Russia’s Law on Removed Cultural Property reparations. declared cultural property brought into the USSR by way of exercise of its right to “compensatory restitution” pursuant to orders of the Soviet authorities to be 63 federal property of the Russian Federation. In 1999, Russia’s Constitutional Court upheld the constitutionality of this law insofar as it dealt with “the rights of Russia to cultural property imported into Russia from former enemy states by way of compensatory restitution”. In the Court’s opinion: 58 ibid. , First Protocol to the Hague Convention for the Protection of Cultural Property, para. 4 ( § 453). 59 See, e.g., the statements of Germany ( ibid. , § 460) and Iraq ( ibid. , §§ 464–465). 60 UN Security Council, Res. 686 and 687 ( ibid. , § 472) and Res. 1284 ( ibid. , § 473). 61 ibid. , UN Secretary-General, Second report pursuant to paragraph 14 of resolution 1284 (1999) ( § 477). 62 First Protocol to the Hague Convention for the Protection of Cultural Property, para. 3 ( ibid. , § 453). 63 Russia, Law on Removed Cultural Property ( ibid. , § 458).

199 138 cultural property The obligation of former enemy states to compensate their victims in the form of common restitution and compensatory restitution is based on the well-established principle of international law recognised well before World War II, concerning inter- 64 national legal responsibility of an aggressor state. Germany has on several occasions objected to this decision and stated that “thefts and destruction of cultural property by the Nazi regime as well as the removal of cultural property by the Soviet Union during and after the Sec- 65 ond World War were breaches of international law”. It should be stressed, however, that the Russian law applies to acts which occurred before the First Protocol to the Hague Convention for the Protection of Cultural Property entered into force. 64 Russia, Constitutional Court, Law on Removed Cultural Property case ( ibid. , § 459). 65 See, e.g., the statements of Germany ( ibid. , §§ 461–462).

200 chapter 13 WORKS AND INSTALLATIONS CONTAINING DANGEROUS FORCES Rule 42. Particular care must be taken if works and installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, and other installations located at or in their vicinity are attacked, in order to avoid the release of dangerous forces and consequent severe losses among the civilian population. Practice Volume II, Chapter 13. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts When works and installations containing dangerous forces are civilian objects, they may not be made the object of attack (see Rule 7). These works and instal- lations may only be attacked in case they qualify as military objectives (see Rule 7). Practice shows that States are conscious of the high risk of severe incidental losses which can result from attacks against such works and instal- lations when they constitute military objectives. Consequently, they recognise that particular care must be taken in case of attack. The detailed rules contained in Article 56 of Additional Protocol I, as well as in Article 15 of Additional Protocol II, were elaborated on the basis of this 1 2 recognition. These rules are set forth in numerous military manuals. Attacks against works and installations which result in severe losses are offences under 1 Additional Protocol I, Article 56 (adopted by consensus) (cited in Vol. II, Ch. 13, § 1); Additional Protocol II, Article 15 (adopted by consensus) ( ibid. , § 5). 2 See, e.g., the military manuals of Argentina ( ibid. , § 11), Australia ( ibid. , § 12), Belgium ( ibid. , § 14), Benin ( ibid. ibid. , § 16), Canada ( ibid. , § 17), France ( ibid. , §§ 21– , § 15), Cameroon ( ibid. , § 24), Kenya ( ibid. , § 29), Netherlands ( ibid. , §§ 32–33), New Zealand 23), Germany ( ( ibid. , § 34), South Africa ( ibid. , § 36), Spain ( ibid. , § 37), Switzerland ( ibid. , §§ 38–39), Togo ( ibid. , § 40), United Kingdom ( ibid. , § 41) and Yugoslavia ( ibid. , § 46). 139

201 140 works & installations with dangerous forces 3 Military manuals and legislation of a the legislation of a number of States. 4 number of other States prohibit attacks against works and installations as such. Upon ratification of Additional Protocol I, France and the United Kingdom declared that they cannot grant “absolute” protection to works and installa- tions containing dangerous forces which are military objectives. They recog- nise, however, the special peril inherent in any attack against works and instal- lations containing dangerous forces as they require, respectively, that every “necessary” and every “due” precaution be taken in the exceptional situation where such works and installations are to be attacked, in order to avoid severe 5 incidental losses among the civilian population. The Colombian government similarly expressed the need for restraint and precaution in a statement with respect to an attack by government troops on a dam in order to dislodge guer- 6 rillas. Israel and the United States stress that the proportionality test is important in assessing the legality of an attack against works and installations containing 7 dangerous forces which are military objectives. While an assessment under the principle of proportionality must be made on a case-by-case basis, this position equally reflects sensitivity to the severe losses that may ensue among the civilian population when dangerous forces of such works and installations are released. “Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilians objects” constitutes a grave breach 8 of Additional Protocol I. Such attacks are also offences under the legislation 9 of many States. 3 ibid. , § 51), Hungary ( ibid. , § 65) (“which result in heavy See, e.g., the legislation of Azerbaijan ( ibid. damage”), Lithuania ( , § 69) (“knowing that it might have extremely grave consequences”), ibid. , § 76) (“an attack on which would be particularly dangerous”) and Spain ( , Slovenia ( ibid. , § 47), El Salvador ibid. § 77) (“considerable losses”); see also the draft legislation of Argentina ( , § 61), Jordan ( ibid. , § 67) (“widespread loss of life or injury among the civilian population ( ibid. , § 72). ibid. and damage to civilian property”) and Nicaragua ( 4 ibid. See, e.g., the military manuals of Croatia ( ibid. , §§ 21–22), Italy ( ibid. , , § 19), France ( §§ 27–28), South Korea ( , § 30) and Madagascar ( ibid. , § 31) and the legislation of Belgium ibid. ( , § 53), Bosnia and Herzegovina ( ibid. , § 54), Colombia ( ibid. , § 56) (“without any justifica- ibid. tion based on imperative military necessity”), Croatia ( ibid. , § 58), Czech Republic ( ibid. , § 60) (intentional destruction or damage), Estonia ( ibid. ibid. , § 63) (“in the knowledge , § 62), Georgia ( ibid. , § 64), Slovakia ( , § 75) (intentional destruction or that it will cause loss”), Germany ( ibid. , § 79) and Yugoslavia ( ibid. ibid. damage), Tajikistan ( , § 81). 5 France, Reservations and declarations made upon ratification of Additional Protocol I ( ibid. , § 4); United Kingdom, Reservations and declarations made upon ratification of Additional Protocol I ( ibid. , § 3). 6 Colombia, Comments of the Office of the Human Rights Adviser of the Presidency ( , § 88). ibid. 7 ibid. Report on the Practice of Israel ( Air Force Pamphlet ( ibid. , § 42), Naval , § 98); United States, Handbook ( ibid. , § 44), Annotated Supplement to the Naval Handbook ( ibid. , § 45) and Remarks of the Deputy Legal Adviser of the Department of State ( ibid. , § 108). 8 Additional Protocol I, Article 85(3)(c) ( , § 2). ibid. 9 ibid. See, e.g., the legislation of Armenia ( ibid. , §§ 49–50), Belarus ( ibid. , § 52), , § 48), Australia ( Belgium ( ibid. , § 53), Canada ( ibid. , § 55), Cook Islands ( ibid. , § 57), Cyprus ( ibid. , § 59), Ireland ( ibid. , § 66), Netherlands ( ibid. , § 70), New Zealand ( ibid. , § 71), Niger ( ibid. , § 73), Norway

202 Rule 42 141 States’ sensitivity to the possibility of the release of dangerous forces is under- scored by the fact that when attacks against such works and installations have been carried out in recent decades, the attacker stressed they were executed 10 with the greatest care possible. It is further underlined by the condemnations of such attacks, denials of such attacks and generally by the restraint shown by States with respect to attacks against works and installations containing 11 dangerous forces. It appears, therefore, that attacks could be envisaged in situations where they are indispensable to obtain an important military advantage, which could not be obtained in any other way, and all necessary precautions are taken. The importance of such a decision, given the high risk of severe incidental losses, is illustrated by the position taken by the United Kingdom and the United States that a decision to attack a work or installation containing dangerous forces has to be taken at, respectively, “a high level of command” and “at appropriately 12 high political levels”. State practice does not see this rule as a one-sided requirement. The defender equally has an obligation to preserve or enhance the protection of works and installations containing dangerous forces by taking all feasible precautions against attacks: the works and installations should not be used in direct support of military action; military objectives should not be located at or in the vicinity of such works and installations; and such works and installations should never 13 be used to shield military operations. Belligerent reprisals against works and installations containing dangerous forces are discussed in Chapter 41. Scope of application of the rule The Additional Protocols have limited this rule to dams, dykes and nuclear 14 electrical generating stations. Inclusion of other works and installations con- taining dangerous forces could not be agreed upon at the Diplomatic Con- ference leading to the adoption of the Additional Protocols. However, the ibid. , § 74), Sweden ( ibid. , § 78), United Kingdom ( ibid. , § 80) and Zimbabwe ( ibid. , § 82); see ( also the draft legislation of Lebanon ( ibid. , § 68). 10 See, e.g., United Kingdom, Statement by the Secretary of Defence before the Defence ibid. Committee (with respect to the Gulf War) ( , § 105) and the practice of the United States with respect to the Vietnam War, reported in W. Hays Parks, “Air War and the Law of War” ( ibid. , § 107). 11 ibid. , § 45), the statements of China ( See, e.g., the military manuals of the United States ( , ibid. § 87), Iran ( ibid. , § 95), Iraq ( ibid. , §§ 96–97) and United Kingdom ( ibid. , § 104) and the reported practice of Pakistan ( ibid. , § 101). 12 United Kingdom, Reservations and declarations made upon ratification of Additional Protocol I ( ibid. , § 3); United States, Air Force Pamphlet ( ibid. , § 42). 13 See the practice cited in ibid ., §§ 129–153. 14 Additional Protocol I, Article 56 (adopted by consensus) ( ibid. , § 1); Additional Protocol II, Article 15 (adopted by consensus) ( ibid. , § 5).

203 142 works & installations with dangerous forces considerations explained above should equally apply to other installations, such as chemical plants and petroleum refineries. The fact that attacks on such installations may cause severe damage to the civilian population and the natural environment implies that the decision to attack such installations, in case they become military objectives, requires that all necessary precautions be taken when attacking them.

204 chapter 14 THE NATURAL ENVIRONMENT Rule 43. The general principles on the conduct of hostilities apply to the natural environment: A. No part of the natural environment may be attacked, unless it is a military objective. B. Destruction of any part of the natural environment is prohibited, unless required by imperative military necessity. C. Launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited. Practice Volume II, Chapter 14, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Principle of distinction The rule that it is prohibited to attack any part of the natural environment unless it is a military objective is based on the general requirement that a dis- tinction be made between military objectives and civilian objects (see Rule 7). This rule is reflected in Protocol III to the Convention on Certain Conven- tional Weapons, which provides that “it is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or 1 The military other military objectives, or are themselves military objectives”. manuals and official statements which consider that an area of land may be a 2 military objective if it meets the required conditions also reflect this. 1 Protocol III to the CCW, Article 2(4) (cited in Vol. II, Ch. 30, § 110). 2 See, e.g., the statements of Belgium (cited in Vol. II, Ch. 2, § 622), Canada ( ibid. , §§ 597 and 623), Federal Republic of Germany ( ibid. , §§ 597 and 624), France ( ibid. , § 598), Italy ( ibid. , § 597), 143

205 144 the natural environment The application of the principle of distinction to the natural environment is set forth in the Guidelines on the Protection of the Environment in Times 3 of Armed Conflict. The UN General Assembly has invited all States to dis- seminate these Guidelines widely and to give due consideration to the possi- bility of incorporating them into their military manuals and other instructions 4 addressed to their military personnel. The application of the principle of dis- tinction to the natural environment is also supported by military manuals and 5 official statements. The Final Declaration adopted by the International Con- ference for the Protection of War Victims in 1993 urged States to reaffirm and ensure respect for international humanitarian law protecting the natural envi- 6 ronment against “attacks on the environment as such”. The principle of distinction, which is applicable in international and non- international armed conflicts (see Rule 7), applies equally in relation to the environment. The ICRC made such a statement of principle in 1993 in a report submitted to the UN General Assembly on the protection of the environment 7 in time of armed conflict. This assertion was uncontested. Destruction of property not justified by military necessity According to State practice, the prohibition on destroying or seizing the prop- erty of an adversary, unless required by imperative military necessity, (see Rule 50) applies equally to the natural environment. The applicability of this prohibition to the natural environment is set forth in the Guidelines on the 8 This is supported Protection of the Environment in Times of Armed Conflict. 9 by military manuals, national legislation and official statements. In its advisory opinion in the in 1996, the Interna- Nuclear Weapons case tional Court of Justice stated that “respect for the environment is one of the Netherlands ( , §§ 597, 599 and 625), New Zealand ( ibid. , § 597), Pakistan ( ibid. , § 599), Spain ibid. ibid. , § 597), United Kingdom ( ibid. , §§ 597, 599 and 626) and United States ( ibid. , §§ 599 and ( ibid. 627–628) and the military manuals of Australia ( ibid. , §§ 602–604), Benin , § 601), Belgium ( ibid. , § 605), Ecuador ( ( , § 608), France ( ibid. , § 609), Italy ( ibid. , §§ 610–611), Madagascar ibid. ( ibid. , § 612), Netherlands ( ibid. , § 613), New Zealand ( ibid. , § 614), Spain ( ibid. , § 615), Sweden ( ibid. ibid. , § 617), United Kingdom ( ibid. , § 618) and United States ( ibid. , § 619). , § 616), Togo ( 3 Guidelines on the Protection of the Environment in Times of Armed Conflict, para. 4 (cited in Vol. II, Ch. 14, § 5). 4 ibid. , § 56); see also Res. 51/157, UN General Assembly, Res. 49/50 (adopted by consensus) ( ibid. , § 57). Annex ( 5 Defence Force Manual ( ibid. See, e.g., Australia, ibid. , § 37), Iran , § 8); the statements of Canada ( ( , § 41), Marshall Islands ( ibid. , § 45), Russia ( ibid. ibid. ibid. ,§§50and , § 47) and United States ( 53). 6 International Conference for the Protection of War Victims, Final Declaration ( ibid. , § 61). 7 ICRC, Report on the protection of the environment in time of armed conflict ( , § 67). ibid. 8 Guidelines on the Protection of the Environment in Times of Armed Conflict, paras. 8 and 9 ibid. , § 5). ( 9 ibid. , § 8) and United States ( ibid. , § 11), the legislation See, e.g., the military manuals of Australia ( of Nicaragua ( ibid. , § 22) and Spain ( ibid. , § 25) and the statements of Australia ( ibid. , § 30), , §§ 41–42) and United States ( Austria ( , § 33), Canada ( ibid. , § 36), Iran ( ibid. ibid. ibid. ,§§50 and 52–53); see also Report of an expert meeting on the protection of the environment in time of armed conflict ( ibid. , § 60).

206 Rule 43 145 elements that go to assessing whether an action is in conformity with the princi- 10 ple of necessity”. The Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia was of the view that the environmental impact of that bombing campaign was “best considered from the underlying principles of the law of armed conflicts such as necessity and 11 proportionality”. Furthermore, under the Fourth Geneva Convention, extensive destruction of property “not justified by military necessity and carried out unlawfully and 12 wantonly” constitutes a grave breach. This rule is restated in other instru- 13 ments with respect to the natural environment. It is also applied to the natural 14 environment in a number of official statements. In a resolution on the pro- tection of the environment in times of armed conflict in 1992, the UN General Assembly stressed that “destruction of the environment, not justified by mili- tary necessity and carried out wantonly, is clearly contrary to existing interna- 15 tional law”. The Final Declaration adopted by the International Conference for the Protection of War Victims in 1993 urged States to reaffirm and ensure respect for international humanitarian law protecting the natural environment 16 against “wanton destruction causing serious environmental damage”. The prohibition of unnecessary destruction of property is applicable in inter- national and non-international armed conflicts (see Rule 50) also in relation to the environment. The ICRC made such a statement of principle in 1993 in a report submitted to the UN General Assembly on the protection of the 17 environment in time of armed conflict. This assertion was uncontested. Principle of proportionality Practice shows a general acceptance of the principle that incidental damage affecting the natural environment must not be excessive in relation to the military advantage anticipated from an attack on a military objective. This is set forth in the Guidelines on the Protection of the Environment in Times of 18 Armed Conflict and in the San Remo Manual on Naval Warfare. 10 ICJ, Nuclear Weapons case , Advisory Opinion ( ibid. , § 62). 11 Committee Established to Review the NATO Bombing Campaign Against the Federal Republic ibid. of Yugoslavia, Final Report ( , § 63). 12 Fourth Geneva Convention, Article 147 (cited in Vol. II, Ch. 16, § 53). 13 See, e.g., Agenda 21, para. 39.6 (cited in Vol. II, Ch. 14, § 3); San Remo Manual, para. 44 ( ibid. , § 4); Guidelines on the Protection of the Environment in Times of Armed Conflict, para. 8 ( , § 5). ibid. 14 See, e.g., the statements of Brazil ( ibid. , § 35), Iran ( ibid. , § 41) and United States ( ibid. ,§§50and 52); see also the statements of Japan (“destruction of the environment”) ( ibid. , § 43), Sweden (destruction “on an unprecedented scale”) ( ibid. , § 48) and United Kingdom (“a deliberate crime ibid. , § 49). against the planet”) ( 15 UN General Assembly, Res. 47/37 (adopted without a vote) ( ibid. , § 55). 16 International Conference for the Protection of War Victims, Final Declaration ( ibid. , § 61). 17 ibid. , § 67). ICRC, Report on the protection of the environment in time of armed conflict ( 18 Guidelines on the Protection of the Environment in Times of Armed Conflict, para. 4 ( ibid. , § 5); San Remo Manual, para. 13(c) ( ibid. , § 6).

207 146 the natural environment The applicability of the principle of proportionality to incidental damage to 19 the environment is supported by a number of official statements. During the bombing campaign against the Federal Republic of Yugoslavia, NATO stated that, when making targeting decisions, it took into account “all possible col- 20 lateral damage, be it environmental, human or to the civilian infrastructure”. The Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia was of the view that the environmental impact of that bombing campaign was “best considered from the underlying principles of the law of armed conflicts such as necessity and proportionality” and stated that “in order to satisfy the requirement of proportionality, attacks against military targets which are known or can reasonably be assumed to cause grave environmental harm may need to confer a very substantial mili- 21 tary advantage in order to be considered legitimate”. In its advisory opinion in the Nuclear Weapons case in 1996, the International Court of Justice stated that “States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit 22 of legitimate military objectives”. The principle of proportionality is applicable in both international and non- international armed conflicts (see Rule 14) also in relation to the environment. The ICRC made such a statement of principle in 1993 in a report submitted to the UN General Assembly on the protection of the environment in time of 23 armed conflict. This assertion was uncontested. Other rules affording protection to the natural environment A number of other rules of international humanitarian law have the effect of preventing or limiting damage to the environment, even though they were not developed for this purpose, but rather for the purpose of protecting the civilian population. Examples of such rules include the obligation to take particular care when works and installations containing dangerous forces which are military objectives are made the object of an attack (see Rule 42) and the prohibition on attacking objects indispensable to the survival of the civilian population (see Rule 54). Belligerent reprisals against the natural environment are discussed in Chapter 41. 19 See the statements of Australia ( , § 30), Austria ( ibid. , § 34), Canada ( ibid. , § 37), Colombia ibid. ibid. ibid. ( , § 41), Jordan ( ibid. , § 44), Romania ( , § 39), Iran ( , § 46) and United States ibid. ( ibid. , §§ 44 and 50); see also Report of an expert meeting on the protection of the environment in time of armed conflict ( ibid. , § 60). 20 ibid. , § 58). See the reported practice of NATO ( 21 Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report ( ibid. , § 63). 22 ICJ, Nuclear Weapons case , Advisory Opinion ( ibid. , § 62). 23 ICRC, Report on the protection of the environment in time of armed conflict ( ibid. , § 67).

208 Rule 44 147 Rule 44. Methods and means of warfare must be employed with due regard to the protection and preservation of the natural environment. In the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimise, incidental damage to the environment. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions. Practice Volume II, Chapter 14, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in international, and arguably also in non-international, armed conflicts. International armed conflicts State practice shows that the protection to be accorded to the environment during armed conflicts stems not only from the application to the environment of the rules protecting civilian objects, but also from a recognition of the need to provide particular protection to the environment as such. The extensive development of international law to protect the environment over the last few decades has been motivated by a recognition of the dangerous degradation of the natural environment caused by mankind. This development has been such that a State’s interest in the protection of its natural environment has now been ́ Gabc ıkovo-Nagymaros recognised by the International Court of Justice in the as an “essential interest” that could justify that State invoking the Project case 24 doctrine of “necessity” to renege from other international obligations. The importance of the natural environment as such was taken into account by the UN Security Council in a resolution adopted in 1991, in which it affirmed Iraq’s responsibility under international law for environmental damage and depletion of natural resources as a result of its unlawful invasion and occupation 25 of Kuwait. Profound concern at the deterioration of the environment during that war was also expressed by the UN General Assembly in resolutions adopted 26 in 1991 and 1992. As a result of this concern, the UN General Assembly declared “6 November each year as the International Day for Preventing the 27 Exploitation of the Environment in War and Armed Conflict”. Concern has 24 ˇ ́ ibid. c ICJ, ıkovo-Nagymaros Project case , Judgement ( Gab , § 121). 25 ibid. , § 111). UN Security Council, Res. 687 ( 26 UN General Assembly, Res. 46/216 (adopted by 135 votes in favour, none against and one abstention) ( ibid. , § 112) and Res. 47/151 (adopted by 159 votes in favour, none against and two abstentions) ( ibid. , § 112). 27 UN General Assembly, Res. 56/4 ( ibid. , § 115).

209 148 the natural environment also been expressed about the damage to the environment of both Yugoslavia and neighbouring countries by NATO’s bombing campaign against Yugoslavia 28 during the Kosovo crisis. The need to protect the environment during armed conflict is set forth in sev- 29 eral international instruments. The general need to protect the environment during armed conflict is also articulated in some military manuals, official 30 statements and reported practice. It is further reflected in condemnations of 31 behaviour in armed conflict that caused severe damage to the environment. In Nuclear Weapons their submissions to the International Court of Justice in the Nuclear Weapons (WHO) case case and , many States emphasised that inter- national law recognises the importance of the protection of the environment during armed conflict, and they did not limit themselves to the requirements 32 of treaties specifically applicable to armed conflict. There is also evidence that environmental concerns affected military planning during the Gulf War, as the Coalition reportedly desisted from certain attacks out of environmental 33 concerns. Furthermore, in the Nuclear Weapons case in 1996, the International Court of Justice found that States’ obligation to ensure that activities within their jurisdiction and control respect the environment of other States or areas beyond 34 national control was part of customary international law. Non-international armed conflicts It can be argued that the obligation to pay due regard to the environment also applies in non-international armed conflicts if there are effects in another State. This argument is based on the recognition by the International Court of Justice 28 See, e.g., Council of Europe, Parliamentary Assembly, Committee on the Environment, Regional Planning and Local Authorities, Report on the Environmental Impact of the War in Yugoslavia ibid. , § 117). on South-East Europe ( 29 ibid. , § 73) and Principle 20 ( ibid. , § 74); Rio See, e.g., World Charter for Nature, Principle 5 ( ibid. Declaration, Principle 24 ( , § 76); Guidelines on the Protection of the Environment in Times ibid. ibid. , § 78). of Armed Conflict, para. 11 ( , § 77); San Remo Manual, paras. 35 and 44 ( 30 ibid. , § 79), South Korea ( ibid. , § 80) and United See, e.g., the military manuals of Australia ( States ( ibid. , § 81), the statement of Yemen ( ibid. , § 109) and the reported practice of Lebanon ( ibid. , § 96). 31 See, e.g., the statements of China ( ibid. , § 85), Germany ( ibid. , § 91), Iran ibid. , § 84), Colombia ( , § 93), Netherlands ( ibid. , § 99) and United Kingdom ( ibid. , § 105). ( ibid. 32 See the oral pleadings of or the written statements submitted to the ICJ in the Nuclear Weapons ibid. by Egypt ( , § 88), Iran ( ibid. , § 93), Malaysia ( ibid. case ibid. , § 102) and , § 97), Qatar ( Solomon Islands ( ibid. , § 103) and the written statements submitted in the Nuclear Weapons (WHO) case by Costa Rica ( ibid. , § 87), Mexico ( ibid. , § 98) and Sri Lanka ( ibid. , § 104). 33 A. P. V. Rogers, ( ibid. , § 68). Law on the Battlefield 34 Nuclear Weapons case , Advisory Opinion ( ibid. , § 120); see also the Convention on Bio- ICJ, diversity, Principle 3 ( ibid. , § 71); Stockholm Declaration on the Human Environment, Principle , § 92); 21 ( , § 72); Rio Declaration, Principle 2 ( ibid. , § 75); the statement of Iran ( ibid. ibid. American Law Institute, Restatement of the Foreign Relations Law of the United States ( ibid. , § 123).

210 Rule 44 149 35 and that safeguarding a State’s ecological balance was an “essential interest” its finding that States’ obligation to ensure that activities within their juris- diction and control respect the environment of other States or areas beyond 36 national control were part of customary international law. Furthermore, there are indications that this customary rule may also apply to parties’ behaviour within the State where the armed conflict is taking place. Some support for drafting a treaty rule for this purpose existed during 37 the negotiation of Additional Protocol II. It was not adopted then, but the general acceptance of the applicability of international humanitarian law to non-international armed conflicts has considerably strengthened since 1977. In addition, many environmental law treaties apply to a State’s behaviour within ). There is also a certain amount of State practice its own territory (see infra indicating the obligation to protect the environment that applies also to non- international armed conflicts, including military manuals, official statements and the many submissions by States to the International Court of Justice in the Nuclear Weapons case to the effect that the environment must be protected 38 for the benefit of all. Obligation to take all feasible precautions to avoid or minimise damage to the environment Practice indicates that the obligation to take all feasible precautions to avoid, and in any event to minimise, incidental damage to civilian objects (see Rule 15) equally applies to damage to the natural environment. This is set forth in the Guidelines on the Protection of the Environment in Times of Armed 39 Conflict. The principle that precautions must be taken to avoid or minimise damage to the environment is also supported by military manuals and official 40 statements. 35 ́ ˇ , Judgement ( c Gab ibid. , § 121). ICJ, ıkovo-Nagymaros Project case 36 ICJ, , Advisory Opinion ( ibid. , § 120); see also the Convention on Bio- Nuclear Weapons case diversity, Principle 3 ( , § 71); Stockholm Declaration on the Human Environment, Principle ibid. ibid. 21 ( ibid. , § 75); the statement of Iran ( ibid. , § 92); , § 72); Rio Declaration, Principle 2 ( American Law Institute, Restatement of the Foreign Relations Law of the United States ( ibid. , § 123). 37 See State practice in the context of the negotiations at the Diplomatic Conference leading to the adoption of the Additional Protocols ( , § 150). ibid. 38 See, e.g., the military manuals of Italy ( ibid. , § 10) and South Korea ( ibid. , § 80); the statements of ibid. , § 29) and Colombia ( ibid. , § 85); the oral pleadings of and the written statements Argentina ( Nuclear Weapons case submitted to the ICJ in the ibid. , § 88), Iran ( ibid. , § 93), Malaysia by Egypt ( ( , § 97), Qatar ( ibid. , § 102) and Solomon Islands ( ibid. , § 103) and the written statements ibid. submitted in the Nuclear Weapons (WHO) case by Costa Rica ( ibid. , § 87), Mexico ( ibid. , § 98), Rwanda ( ibid. ibid. , § 104) and Ukraine ( ibid. , § 261). , § 253), Sri Lanka ( 39 Guidelines on the Protection of the Environment in Times of Armed Conflict, para. 4 ( ibid. , § 5); see also World Charter for Nature, Principle 20 ( ibid. , § 74). 40 , § 29) See, e.g., United States, ( ibid. , § 11); the statements of Argentina ( ibid. Naval Handbook and Canada ( ibid. , §§ 36 and 38); see also Report of an expert meeting on the protection of the environment in time of armed conflict ( ibid. , § 60).

211 150 the natural environment In 1995, the 26th International Conference of the Red Cross and Red Crescent called on parties to the conflict to “take all feasible precautions to avoid, in their 41 military operations, all acts liable to destroy or damage water sources”. Precautionary principle There is practice to the effect that lack of scientific certainty as to the effects on the environment of certain military operations does not absolve parties to a conflict from taking proper precautionary measures to prevent undue damage. As the potential effect on the environment will need to be assessed during the planning of an attack, the fact that there is bound to be some uncertainty as to its full impact on the environment means that the “precautionary principle” is of particular relevance to such an attack. The precautionary principle in environmental law has been gaining increasing 42 recognition. There is, furthermore, practice to the effect that this environ- mental law principle applies to armed conflict. In its advisory opinion in the Nuclear Weapons case , the International Court of Justice stated that the basic Nuclear Tests case (Request for an Examination principles it recognised in the of 1995 would also apply to the actual use of nuclear weapons of the Situation) 43 in armed conflict. inter alia , the precautionary principle This would include, 44 which was central to the arguments in the latter case. The ICRC, in its report submitted in 1993 to the UN General Assembly on the protection of the envi- ronment in time of armed conflict, referred to the precautionary principle as “an emerging, but generally recognised principle of international law [whose object it is] to anticipate and prevent damage to the environment and to ensure that, where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason to postpone any measures to prevent 45 such damage”. This assertion was not contested by any State. 41 26th International Conference of the Red Cross and Red Crescent, Res. II (adopted by consensus) ( ibid. , § 138). 42 See, e.g., Convention on Biodiversity, preamble ( , § 126); Rio Declaration, Principle 15 ibid. ibid. , § 127); the statements of France ( ibid. , § 131) and New Zealand ( ( , § 132); UN Economic ibid. Commission for Europe, Bergen ECE Ministerial Declaration on Sustainable Development, Article 7 ( ibid. , § 133). 43 ICJ, Nuclear Weapons case , Advisory Opinion, 8 July 1996, § 32. 44 Nuclear Tests case (Request for an Examination of the Situation) , Order (cited in Vol. ICJ, II, Ch. 14, § 139). New Zealand argued that the precautionary principle was a binding rule ( ibid. , § 132). Although France stated that it was uncertain whether the precautionary principle had become a binding rule of international law, it nevertheless stated that it did in practice carry out precautions that were in keeping with its obligations under international environmental law ( ibid. , § 131). The ICJ concluded that both France and New Zealand had, in their submissions, reaffirmed their commitment to respect their obligations to respect and protect the natural environment ( ibid. , § 139). 45 ICRC, Report on the protection of the environment in time of armed conflict ( ibid. , § 143).

212 Rule 45 151 Continued application of environmental law during armed conflict There appears to be insufficient uniformity of opinion on whether environ- mental law treaties continue to be applicable during armed conflict when no reference is made to this in the treaty concerned. The Guidelines on the Protec- tion of the Environment in Times of Armed Conflict states that international environmental law “may continue to be applicable in times of armed conflict to the extent that they are not inconsistent with the applicable law of armed 46 conflict”. In its advisory opinion in the Nuclear Weapons case , the International Court of Justice did not address this issue directly, but stated that environmental law “indicates important factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law 47 applicable in armed conflict”. The few States that analysed the issue in their 48 submissions to the Court in this case had different views. Rule 45. The use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited. Destruction of the natural environment may not be used as a weapon. Practice Volume II, Chapter 14, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in international, and arguably also in non-international, armed con- flicts. It appears that the United States is a “persistent objector” to the first part of this rule. In addition, France, the United Kingdom and the United States are persistent objectors with regard to the application of the first part of this rule to the use of nuclear weapons. Causing widespread, long-term and severe damage to the natural environment Article 35(3) of Additional Protocol I prohibits the use of “methods or means of warfare which are intended, or may be expected to cause, widespread, long-term 46 Guidelines on the Protection of the Environment in Times of Armed Conflict, para. 5 ( ibid. , § 77). 47 ICJ, Nuclear Weapons case , Advisory Opinion ( ibid. , § 62). 48 Nuclear Weapons See the oral pleadings of or the written statements submitted to the ICJ in the case by France ( ibid. , § 89), Solomon Islands ( ibid. , § 103), United Kingdom ( ibid. , § 107) and United States ( ibid. , § 108).

213 152 the natural environment 49 This prohibition is also con- and severe damage to the natural environment”. 50 tained in Article 55(1) of Additional Protocol I. These provisions were clearly new when they were adopted. Upon ratification of Additional Protocol I, France and the United Kingdom stated that the risk of environmental damage falling within the scope of these provisions must be assessed “objectively on the basis 51 of the information available at the time”. However, since then, significant practice has emerged to the effect that this prohibition has become customary. This prohibition is set forth in many mili- 52 tary manuals. Causing widespread, long-term and severe damage to the envi- 53 ronment is an offence under the legislation of numerous States. This practice includes that of States not, or not at the time, party to Additional Protocol 54 I. Several States indicated in their submissions to the International Court of Justice in the Nuclear Weapons case and Nuclear Weapons (WHO) case that they considered the rules in Articles 35(3) and 55(1) of Additional Protocol I to 55 be customary. In the same context, other States appeared to be of the view that these rules were customary as they stated that any party to a conflict must observe this rule, or must avoid using methods or means of warfare that would 56 destroy or could have disastrous effects on the environment. The Report on the Practice of Israel, which is not a party to Additional Protocol I, states that the Israeli Defence Forces do not utilise or condone the use of methods or means 49 , § 145). Additional Protocol I, Article 35(3) (adopted by consensus) ( ibid. 50 ibid. , § 146). Additional Protocol I, Article 55(1) (adopted by consensus) ( 51 France, Reservations and declarations made upon ratification of Additional Protocol I, § 6 ( ibid. , § 147); United Kingdom, Reservations and declarations made upon ratification of Addi- ibid. tional Protocol I, § e ( , § 149); see also France, Interpretative declarations made upon rati- fication of the ICC Statute,§7( , § 155). ibid. 52 See, e.g., the military manuals of Argentina ( ibid. , §§ 164–165), ibid. , § 163), Australia ( , § 166), Benin ( ibid. , § 167), Canada ( ibid. , § 168), Colombia ( ibid. , § 169), France Belgium ( ibid. ibid. , § 170), Germany ( ibid. , §§ 171–173), Italy ( ibid. , § 174), Kenya ( ibid. , § 175), Netherlands ( ( ibid. ibid. , § 178), Russia ( ibid. , § 179), Spain ( ibid. , § 180), Sweden , §§ 176–177), New Zealand ( , § 184), United ibid. ibid. ( ibid. , § 183), United Kingdom ( ibid. , § 181), Switzerland ( , § 182), Togo ( States ( ibid. , §§ 185–186) and Yugoslavia ( ibid. , § 187). 53 See, e.g., the legislation of Australia ( ibid. , § 190), Azerbaijan ( ibid. , § 191), Belarus ( ibid. , § 192), Bosnia and Herzegovina ( ibid. ibid. , § 195), Colombia ( ibid. , § 196), , § 193), Canada ( ibid. , § 197), Croatia ( , § 198), Georgia ( ibid. , § 201), Germany ( ibid. , § 202), Ireland Congo ( ibid. ibid. ibid. , § 206), Netherlands ( ibid. , § 208), New Zealand ( ibid. , § 209), Norway ( , § 203), Mali ( ibid. , § 211), Slovenia ( ibid. , § 213), Spain ( ibid. ( ibid. , § 218) and , § 214), United Kingdom ( Yugoslavia ( , § 220); see also the draft legislation of Argentina ( ibid. , § 188), Burundi ( ibid. , ibid. ibid. ibid. § 194), El Salvador ( , § 210) and Trinidad and Tobago ( ibid. , § 216). , § 199), Nicaragua ( 54 See the military manuals of Belgium ( ibid. , § 166), United Kingdom ( ibid. , § 184) and United States (“prolonged damage to the environment”) ( ibid. , § 186) and the legislation of Azerbaijan ( ibid. ibid. , § 219). , § 191); see also the legislation of Vietnam (“ecocide”) ( 55 See the oral pleadings and written statements in the of New Zealand Nuclear Weapons case ibid. , § 251), Solomon Islands ( ibid. ( ibid. , § 259) and Zimbabwe ( ibid. , § 272) , § 257), Sweden ( and the written statements, comments or counter memorial in the Nuclear Weapons (WHO) case of India ( ibid. , § 232), Lesotho ( ibid. , § 247), Marshall Islands ( ibid. , § 248), Nauru ( ibid. , § 249) and Samoa ( , § 254). ibid. 56 See the oral pleadings and written statements in the Nuclear Weapons case of Australia ( ibid. , § 223), Ecuador ( ibid. , § 226), New Zealand ( ibid. , § 251), Sweden ( ibid. , § 259) and Zimbabwe ( ibid. , § 272) and the written statements in the Nuclear Weapons (WHO) case of Rwanda ( ibid. , § 253) and Ukraine ( ibid. , § 261).

214 Rule 45 153 of warfare which are intended, or may be expected, to cause widespread, long- 57 term and severe damage to the environment. The United States, in response to an ICRC memorandum on the applicability of IHL in the Gulf region in 1991, stated that “U.S. practice does not involve methods of warfare that would con- 58 stitute widespread, long-term and severe damage to the environment”. Other relevant practice includes condemnations of States not, or not at the time, party to Additional Protocol I for their alleged “ecocide” or “massive destruction of the environment” or for having violated Articles 35(3) and 55(1) of Additional 59 Protocol I. The prohibition on inflicting widespread, long-term and severe damage to the natural environment is also repeated in the Guidelines on the Protection of the Environment in Times of Armed Conflict and the UN Secretary-General’s Bul- letin on observance by United Nations forces of international humanitarian 60 law. In its working paper on war crimes submitted in 1997 to the Prepara- tory Committee for the Establishment of an International Criminal Court, the ICRC considered as a war crime “wilfully causing widespread, long-term and 61 severe damage to the natural environment”. The final text agreed for the war crime included in the Statute of the International Criminal Court defines this war crime as “intentionally launching an attack in the knowledge that such attack will cause . . . widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and 62 direct overall military advantage anticipated”. The Statute thus establishes an additional condition with respect to the criminalisation of the prohibition contained in this rule. There is, however, a certain amount of practice that indicates doubt as to the customary nature of the rule in Additional Protocol I, in particular with respect to the phrase “may be expected to cause”. The submissions of the United King- dom and the United States to the International Court of Justice in the Nuclear Weapons case stated that Articles 35(3) and 55(1) of Additional Protocol I were 63 not customary. The Court itself appeared to consider the rule not to be cus- tomary as it only referred to the applicability of this provision to “States having 57 Report on the Practice of Israel ( ibid. , § 241). 58 United States, Letter from the Department of the Army to the legal adviser of the US Army ibid. , § 264). forces deployed in the Gulf region ( 59 ibid. , § 231), Iran ( ibid. See, e.g., the statements of Germany ( ibid. , § 245) , § 236) and Kuwait ( in relation to Iraq in 1991 and the statement of Yugoslavia in relation to the NATO bombing of a petrochemical complex in 1999 ( ibid. , § 271). 60 Guidelines on the Protection of the Environment in Times of Armed Conflict, para. 11 ( ibid. , § 159); UN Secretary-General’s Bulletin, Section 6.3 ( ibid. , § 161). 61 ICRC, Working paper on war crimes submitted to the Preparatory Committee for the Establish- ment of an International Criminal Court ( ibid. , § 287). 62 ICC Statute, Article 8(2)(b)(iv) ( ibid. , § 153). 63 United Kingdom, Written statement submitted to the ICJ in the Nuclear Weapons case ( ibid. , § 262); United States, Written statement submitted to the ICJ in the Nuclear Weapons case ( ibid. , § 269).

215 154 the natural environment 64 Upon ratification of the Convention on Cer- subscribed to these provisions”. tain Conventional Weapons, which recalls, in its preamble, the rule in Articles 35(3) and 55(1) of Additional Protocol I, both France and the United States made 65 a statement of interpretation to the effect that this was not a customary rule. Less clear is the Final Report of the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, which stated that Article 55 of Additional Protocol I “may . . . reflect current custom- 66 ary law”. The problem of the customary law nature of the rule, as articulated in Addi- tional Protocol I, seems to turn on the position of France, the United Kingdom and the United States, which have a certain amount of practice indicating their acceptance of the rule provided that it applies to conventional weapons and not to nuclear weapons. This is made clear by the UK LOAC Manual and the US 67 Air Force Commander’s Handbook, and by the reservations made by France and the United Kingdom upon ratifying Additional Protocol I to the effect that 68 the Protocol did not apply to nuclear weapons. This position, combined with the statements of France and the United Kingdom that Articles 35(3) and 55(1) 69 of Additional Protocol I are not customary, opinio juris means that the of these three States is that these rules, of themselves, do not prohibit the use of nuclear weapons. Practice, as far as methods of warfare and use of conventional weapons are concerned, shows a widespread, representative and virtually uniform accep- tance of the customary law nature of the rule found in Articles 35(3) and 55(1) of Additional Protocol I. The contrary practice of France, the United Kingdom and the United States in this regard is not totally consistent. Their statements in some contexts that the rules are not customary contradict those made in other contexts (in particular in military manuals) in which the rule is indicated 70 as binding as long as it is not applied to nuclear weapons. As these three States are not “specially affected” States as far the infliction of this type of damage is concerned, this contrary practice is not enough to have prevented the emer- gence of this customary rule. However, these three States are specially affected as far as possession of nuclear weapons is concerned, and their objection to the 64 ICJ, Nuclear Weapons case , Advisory Opinion ( ibid. , § 282). 65 France, Reservations made upon ratification of the CCW ( , § 152); United States, Statements ibid. ibid. of understanding made upon ratification of the CCW ( , § 153). 66 Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report ( ibid. , § 283). 67 LOAC Manual United Kingdom, ibid. , § 184); United States, Air Force Commander’s Hand- ( book ( ibid. , § 185). 68 France, Declaration made upon ratification of Additional Protocol I ( ibid. , § 147); United Kingdom, Reservations and declarations made upon ratification of Additional Proto- ibid. , § 149). colI( 69 France, Reservations made upon ratification of the CCW ( ibid. , § 152); United Kingdom, Written statement submitted to the ICJ in the Nuclear Weapons case ( ibid. , § 262). 70 See, e.g., the military manuals of France ( ibid. , § 169), United Kingdom ( ibid. , § 183) and United States ( ibid. , § 184).

216 Rule 45 155 application of this specific rule to such weapons has been consistent since the adoption of this rule in treaty form in 1977. Therefore, if the doctrine of “per- sistent objector” is possible in the context of humanitarian rules, these three States are not bound by this specific rule as far as any use of nuclear weapons is concerned. However, it needs to be noted that this does not prevent any use of nuclear weapons being found unlawful on the basis of other rules, for exam- ple the prohibition of indiscriminate attacks (see Rule 11) and the principle of proportionality (see Rule 14). Use of destruction of the natural environment as a weapon There is extensive State practice prohibiting the deliberate destruction of the natural environment as a form of weapon. The ENMOD Convention prohibits the deliberate modification of the environment in order to inflict widespread, long-lasting or severe effects as a means of destruction, damage or injury to 71 another State party. The difference between this provision and the one in Additional Protocol I is that the latter refers primarily to the effects, whereas the ENMOD Convention refers to the deliberate use of a technique to modify the environment. Whether the provisions in the ENMOD Convention are now customary is unclear. On the one hand, the military manuals of Israel, South Korea and New Zealand appear to indicate that the treaty only binds parties 72 to it. On the other hand, Indonesia, which is not a party to the ENMOD 73 The Guidelines on the Convention, states this rule in its military manual. 74 Protection of the Environment in Times of Armed Conflict includes this rule. The UN General Assembly, in a resolution on the United Nations Decade of International Law adopted in 1994 without a vote, invites all States to dissemi- 75 nate these Guidelines widely. At the Second ENMOD Review Conference in 1992, the United States stated that the Convention reflected “the international community’s consensus that the environment itself should not be used as an 76 instrument of war”. In addition to the specific rules contained in the ENMOD Convention, sig- nificant practice exists prohibiting a deliberate attack on the environment as a 77 method of warfare. The legislation of several States criminalises “ecocide”. 71 ENMOD Convention, Article I ( ibid. , § 290). 72 Israel, Manual on the Laws of War ( ibid. , § 300); South Korea, Military Law Manual ( ibid. Military Manual ( ibid. , § 302). , § 301); New Zealand, 73 Indonesia, ( ibid. , § 299). Military Manual 74 Guidelines on the Protection of the Environment in Times of Armed Conflict, para. 12 ( , § 294). ibid. 75 UN General Assembly, Res. 49/50 ( ibid. , § 317). 76 United States, Statement at the Second ENMOD Review Conference ( ibid. , § 316). 77 ibid. , § 189), Belarus ( ibid. , § 192), Kazakhstan See, e.g., the legislation of Armenia ( ( ibid. , § 204), Kyrgyzstan ( ibid. , § 205), Moldova ( ibid. , § 207), Russia ( ibid. , § 212), Tajikistan ( ibid. , § 215), Ukraine ( ibid. , § 217) and Vietnam ( ibid. , § 219).

217 156 the natural environment Estonia’s Penal Code prohibits affecting the environment as a method of war- 78 fare. Yugoslavia condemned what it called “ecocide” in connection with the 79 NATO attack on a petrochemical plant in 1999. Iraq, in a letter to the UN Secretary-General in 1991, stated that it would not exploit the environment 80 and natural resources “as a weapon”. Kuwait, in a letter to the UN Secretary- General the same year, stated that the environment and natural resources must 81 not be used “as a weapon of terrorism”. During a debate in the Sixth Commit- tee of the UN General Assembly in 1991, Sweden, referring to the destruction of the environment by Iraqi forces, said that this was an “unacceptable form of 82 warfare in the future”. In the same context, Canada stated that “the environ- 83 ment as such should not form the object of direct attack”. Also noteworthy is the declaration adopted in 1991 by the OECD Ministers of the Environment condemning Iraq’s burning of oil fields and discharging of oil into the Gulf as a violation of international law and urging Iraq to cease resorting to environ- 84 mental destruction as a weapon. Therefore, irrespective of whether the provisions of the ENMOD Convention are themselves customary, there is sufficiently widespread, representative and uniform practice to conclude that the destruction of the natural environment may not be used as a weapon. Non-international armed conflicts The applicability of both parts of this rule to non-international armed conflicts is less clear than for international armed conflicts. The proposal to include the same rule as Article 35(3) of Additional Protocol I in Additional Protocol II was adopted by Committee III of the Diplomatic Conference leading to the adoption 85 of the Additional Protocols in 1974, but rejected in 1977. The reason for the change of mind is not clear but may have been linked to the simplification process undertaken in the last stages of negotiations in order to ensure the adoption of Additional Protocol II. This rule is contained in other instruments 86 pertaining also to non-international armed conflicts. 78 Estonia, ( ibid. , § 200). Penal Code 79 Yugoslavia, Appeals and Letter of the Federal Ministry for Development, Science and the ibid. , § 271). Environment ( 80 ibid. Iraq, Letter to the UN Secretary-General ( , § 237). 81 Kuwait, Letter to the UN Secretary-General ( ibid. , § 245). 82 Sweden, Statement before the Sixth Committee of the UN General Assembly ( ibid. , § 48). 83 ibid. , § 37). Canada, Statement before the Sixth Committee of the UN General Assembly ( 84 OECD, Declaration of the Ministers of Environment ( ibid. , § 278). 85 See State practice in the context of the negotiations at the Diplomatic Conference leading to the adoption of the Additional Protocols ( ibid. , § 150). 86 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , § 157); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 158).

218 Rule 45 157 This rule is included in military manuals which are applicable in or have 87 been applied in non-international armed conflicts. In addition, many States have adopted legislation criminalising “ecocide” or the wilful infliction of “widespread, long-term and severe damage to the natural environment” in any 88 armed conflict. There are a few condemnations in relation to environmental 89 damage caused in non-international armed conflicts. Most official statements condemning environmental damage in armed conflict, however, are of a general nature and do not appear to be limited to international armed conflicts. However, even if this rule is not yet customary, present trends towards fur- ther protection of the environment and towards establishing rules applicable in non-international armed conflicts mean that it is likely to become customary in due course. This is particularly true as major damage to the environment rarely respects international frontiers, and also because the causing of such damage may violate other rules that apply equally in international and non- international armed conflicts, for example the prohibition of indiscriminate attacks (see Rule 11). Interpretation The difference between this rule and the rule requiring the application to the environment of the general rules of international humanitarian law applicable to civilian objects (see Rule 43) is that this rule is absolute. If widespread, long- term and severe damage is inflicted, or the natural environment is used as a weapon, it is not relevant to inquire into whether this behaviour or result could be justified on the basis of military necessity or whether incidental damage was excessive. It was for this reason that the expression in Additional Proto- col I “widespread, long-term and severe” sets such a high threshold. The three conditions are cumulative and the phrase “long-term” was understood by the adopting States to mean decades. The Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia stated in its final report in 2000 that the threshold was so high as to make it difficult to find a violation. The report indicated that for this reason there was disagree- 90 ment as to whether the damage in the Gulf War crossed this threshold. In its 87 ibid. , § 164), Benin ( See, e.g., the military manuals of Australia ( , § 167), Colombia ibid. ( ibid. , § 169), Germany ( ibid. , §§ 171–173), Italy ( ibid. , § 174), Kenya ( ibid. , § 175), South Korea ( ibid. , § 301), Togo ( ibid. , § 183) and Yugoslavia ( ibid. , § 187). 88 See, e.g., the legislation of Armenia ( , § 189), Azerbaijan ( ibid. , § 191), Belarus ( ibid. , § 192), ibid. ibid. , § 193), Colombia ( ibid. , § 196), Croatia ( ibid. , § 198), Kazakhstan Bosnia and Herzegovina ( ( ibid. , § 204), Kyrgyzstan ( ibid. , § 205), Moldova ( ibid. , § 207), Slovenia ( ibid. , § 213), Spain ( ibid. , § 214), Tajikistan ( , § 215), Ukraine ( ibid. , § 217) and Yugoslavia ( ibid. , § 220); see also the ibid. draft legislation of Argentina ( ibid. , § 188), El Salvador ( ibid. , § 199) and Nicaragua ( ibid. , § 210). 89 , § 84). ibid. , § 223) and Colombia ( ibid. See, e.g., the statements of Bosnia and Herzegovina ( 90 Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report ( ibid. , § 283).

219 158 the natural environment report to Congress in 1992, the US Department of Defense questioned whether 91 the damage met the threshold of “long-term”. “Ecocide” is defined in the penal codes of the countries of the former Soviet Union as “mass destruction of the flora and fauna and poisoning of the atmo- sphere or water resources, as well as other acts capable of causing an ecological 92 catastrophe”. Vietnam’s Penal Code refers to “destroying the natural envi- 93 ronment”. As a violation of this rule inevitably presupposes that there can be knowledge or an inference that a certain method or means of warfare will or probably will cause widespread, long-term and severe damage to the environment, there will need to be some understanding of which types of warfare will have such disastrous consequences on which types of environment. If read together with Rule 44, this means that parties to a conflict are obliged to inform themselves as far as possible of the potential results of their planned actions and to refrain from actions that may be expected to cause widespread, long-term and severe damage to the environment. In a report submitted in 1993 to the UN Secretary- General on the protection of the environment in time of armed conflict, the ICRC states that: It is not easy to know in advance exactly what the scope and duration of some environmentally damaging acts will be; and there is a need to limit as far as pos- sible environmental damage even in cases where it is not certain to meet a strict 94 interpretation of the criteria of “widespread, long-term and severe”. Unlike Additional Protocol I, the ENMOD Convention does not contain a cumulative standard, and the expression “long-lasting” is defined in that Con- 95 vention as “lasting for a period of months, or approximately a season”. The difference was made because ENMOD refers to the deliberate manipulation of the environment, rather than to an intended or expected result on the envi- ronment. It is significant that, in 1992, the parties to the ENMOD Convention adopted an interpretation of the Convention that prohibits the use of herbicides if used for environmental modification and having the effect of upsetting the 96 ecological balance of a region. This interpretation was based on a desire by States parties not to limit the Convention to science-fiction-type weapons, and therefore reflects an interest in providing greater protection to the environment 97 during armed conflict. 91 United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War ( , § 267). ibid. 92 See the legislation of Armenia ( , § 189), Belarus ( ibid. , § 192), Kazakhstan, ( ibid. , § 204), ibid. Kyrgyzstan ( , § 205), Moldova ( ibid. , § 207), Russia, ( ibid. , § 212), Tajikistan, ( ibid. , § 215) ibid. and Ukraine ( ibid. , § 217). 93 Vietnam, ( ibid. , § 219). Penal Code 94 ICRC, Report on the protection of the environment in time of armed conflict ( ibid. , § 286). 95 Conference of the Committee on Disarmament, Understanding relating to Article I of the ENMOD Convention ( ibid. , § 291). 96 Second Review Conference of the Parties to the ENMOD Convention, Final Declaration (cited in Vol. II, Ch. 24, § 633). 97 See, e.g., Canada, Statement at the Second ENMOD Review Conference ( ibid. , § 616).

220 part iii SPECIFIC METHODS OF WARFARE

221

222 chapter 15 DENIAL OF QUARTER Note: The duty to grant quarter is a basic rule that prohibits attacking a person in combat situations on the battlefield. The recognised as hors de combat treatment due to persons hors de combat . is dealt with in Part V Rule 46. Ordering that no quarter will be given, threatening an adversary therewith or conducting hostilities on this basis is prohibited. Practice Volume II, Chapter 15, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. While all those who take a direct part in hostilities must respect this rule, in practice it will be particularly relevant for commanders. International armed conflicts The prohibition on declaring that no quarter will be given is a long-standing rule of customary international law already recognised in the Lieber Code, the Brussels Declaration and the Oxford Manual and codified in the Hague 1 Regulations. “Directions to give no quarter” was listed as a war crime in the 2 Report of the Commission on Responsibility set up after the First World War. 3 Under the Statute of the This rule is now set forth in Additional Protocol I. International Criminal Court, “declaring that no quarter will be given” is a war 4 crime in international armed conflicts. 1 Lieber Code, Article 60 (cited in Vol. II, Ch. 15, § 7); Brussels Declaration, Article 13(d) ( ibid. , § 8); Oxford Manual, Article 9(b) ( ibid. , § 9); Hague Regulations, Article 23(d) ( ibid. , § 2). 2 ibid. , § 11). Report of the Commission on Responsibility ( 3 Additional Protocol I, Article 40 (adopted by consensus) ( ibid. , § 3). 4 ICC Statute, Article 8(2)(b)(xii) ( ibid. , § 6). 161

223 162 denial of quarter 5 Under the leg- The prohibition is contained in numerous military manuals. islation of many States, it is an offence to issue an order that no quarter be 6 given. In several cases after the First and Second World Wars, the accused 7 were charged with violating this rule. The inclusion in Additional Protocol I of the prohibition of “threats” to order that no quarter shall be given or to conduct hostilities on the basis that no quarter shall be given is uncontested and it is incorporated in numerous military 9 8 manuals. The legislation of several States also includes it. The prohibition of threats that no quarter shall be given is supported by several States not, or not 10 at the time, party to Additional Protocol I. The prohibition on threatening to carry out a prohibited act is generally recognised in international law. In addition, if it is prohibited to order or threaten that no quarter shall be given then, a fortiori , it is prohibited to carry out such an order or threats and to conduct military operations on that basis. To conduct military operations on the basis that no quarter shall be given would constitute multiple violations of the prohibition on attacking persons hors de combat (see Rule 47). Non-international armed conflicts Article 4 of Additional Protocol II prohibits ordering that there shall be no sur- 11 vivors. In his report on the establishment of the Special Court for Sierra Leone, the UN Secretary-General noted that the provisions of Article 4 had long been 5 See, e.g., the military manuals of Argentina ( ibid. , § 15), Belgium ( ibid. , § 19), Burkina Faso ( ibid. , § 23), Colombia ( ibid. , § 27), Congo ( ibid. , § 28), France ( ibid. , ibid. , § 22), Cameroon ( ibid. §§ 29–30), Italy ( ibid. , § 36), Morocco ( ibid. , § 37), Nigeria ( ibid. , §§ 40–42), , § 34), Mali ( Senegal ( , § 44), South Africa ( ibid. , § 45), Switzerland ( ibid. , § 48), United Kingdom ( ibid. , ibid. ibid. , § 52). §§ 50–51) and United States ( 6 ibid. , § 54), Australia ( , § 55), Canada ( ibid. , § 59), See, e.g., the legislation of Armenia ( ibid. ibid. , § 60), Congo ( ibid. , § 61), Ethiopia ( ibid. , § 63), Georgia ( ibid. , § 64), Italy ( China ( , ibid. § 67), Lithuania ( , § 68), Mali ( ibid. , § 69), Netherlands ( ibid. , §§ 70–71), New Zealand ( ibid. ibid. , § 72), Spain ( ibid. , § 75), United Kingdom ( ibid. , § 77) and United States ( ibid. , § 78); see also the draft legislation of Burundi ( ibid. , § 58) and Trinidad and Tobago ( ibid. , § 76). 7 See, e.g., Canada, Military Court at Aurich, ( ibid. , § 81); Germany, Leipzig Abbaye Ardenne case Stenger and Cruisus case ( , § 85); United Kingdom, Military Court at Hamburg, Court, ibid. Von Ruchteschell case ibid. Wickman case ( ibid. , § 88) and , § 86), ( ibid. , § 89); Peleus case ( Von Falkenhorst case ( ibid. , § 87); United King- United Kingdom, Military Court at Brunswick, Le Paradis case dom, Court No. 5 of the Curiohaus, Hamburg-Altona, ibid. , § 90); United States, ( Thiele case ibid. , § 91); United States, Military Tribunal at Military Commission at Augsburg, ( Von Leeb (The High Command Trial) case ( ibid. Nuremberg, , § 92). 8 See, e.g., the military manuals of Argentina ( ibid. , § 16), Australia ( ibid. , §§ 17–18), Belgium ( ibid. , § 20), Benin ( ibid. , § 21), Cameroon ( ibid. , § 24), Canada ( ibid. , §§ 25–26), France ( ibid. , §§ 30 and 32), Germany ( ibid. ibid. , § 35), Netherlands ( ibid. , § 38), New Zealand , § 33), Kenya ( ibid. ibid. ibid. , § 43), Spain ( ibid. , § 46), Sweden ( ( , § 47), Togo ( ibid. , § 49) and , § 39), Russia ( ibid. , § 53). Yugoslavia ( 9 See, e.g., the legislation of Australia ( ibid. , § 56), Bosnia and Herzegovina ( ibid. , § 57), Croatia ( ibid. , § 62), Germany ( ibid. , § 65), Ireland ( ibid. , § 66), Norway ( ibid. , § 73), Slovenia ( ibid. , § 74) and Yugoslavia ( , § 79). ibid. 10 See the military manuals of France ( ibid. , § 30) and Kenya ( ibid. , § 35), the statement of the United States ( ibid. , § 98) and the reported practice of Israel ( ibid. , § 95). 11 Additional Protocol II, Article 4(1) (adopted by consensus) ( ibid. , § 4).

224 Rule 46 163 12 Under the Statute of the Inter- considered part of customary international law. national Criminal Court, “declaring that no quarter will be given” is a war 13 crime in non-international armed conflicts. The prohibition on ordering that there shall be no survivors is also included in military manuals which are applicable in or have been applied in non- 14 international armed conflicts. It is an offence under the legislation of numer- 15 ous States to order that no quarter shall be given in any armed conflict. Colombia’s Constitutional Court ruled that this prohibition met constitutional standards as it sought to protect human life and dignity. It also held that supe- 16 rior orders to cause “death outside combat” must be disobeyed. The prohi- bition on ordering that there shall be no survivors is also supported by official 17 statements relating to non-international armed conflicts. In its examination of an incident in which two wounded soldiers were killed by a member of an FMLN patrol, the UN Commission on the Truth for El Salvador found no evidence that the executions were ordered by higher levels of command or that they were carried out in accordance with an FMLN policy of killing prisoners. It reported that the FMLN acknowledged the criminal nature 18 of the incident and tried the accused. The ICRC has recalled the prohibition on ordering that there shall be no survivors with respect to both international and non-international armed con- 19 flicts. Conducting hostilities on the basis that no quarter will be given would violate common Article 3 of the Geneva Conventions because it would result in the 20 . killing of persons hors de combat It would also violate the fundamental guarantee prohibiting murder (see Rule 89). 12 UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone (cited in Vol. II, Ch. 32, § 252). 13 ICC Statute, Article 8(2)(e)(x) (cited in Vol. II, Ch. 15, § 6). 14 See, e.g., the military manuals of Argentina ( ibid. , § 16), Australia ( ibid. , §§ 17–18), Benin ( ibid. , ibid. , § 24), Canada ( ibid. , §§ 25–26), Colombia ( ibid. , § 27), France ( ibid. , § 21), Cameroon ( ibid. § 32), Germany ( ibid. , § 34), Kenya ( ibid. , § 35), Netherlands ( ibid. , § 38), New , § 33), Italy ( Zealand ( , § 39), Nigeria ( ibid. , §§ 40 and 42), Russia ( ibid. , § 43), South Africa ( ibid. , § 45), ibid. Spain ( ibid. , § 46), Togo ( ibid. , § 49) and Yugoslavia ( ibid. , § 53). 15 See, e.g., the legislation of Australia ( , § 56), Bosnia and Herzegovina ( ibid. , § 57), Canada ibid. ibid. ibid. , § 61), Croatia ( ibid. , § 62), Ethiopia ( ibid. , § 63), Georgia ( ibid. , § 64), ( , § 59), Congo ( ibid. , § 65), Ireland ( ibid. , § 66), Netherlands ( ibid. Germany ( ibid. , § 72), , § 71), New Zealand ( Norway ( , § 73), Slovenia ( ibid. , § 74), United Kingdom ( ibid. ibid. ibid. , , § 75) and Yugoslavia ( § 79); see also the legislation of Italy ( ibid. , § 67), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Burundi ( ibid. , § 57) and Trinidad and Tobago ( ibid. , § 76). 16 Colombia, Constitutional Court, ( ibid. , § 82), Constitutional Constitutional Case No. T-409 ( Case No. C-225/95 , § 83) and Constitutional Case No. C-578 ( ibid. , § 84). ibid. 17 See, e.g., China, Announcement of the People’s Liberation Army ( ibid. , § 94). 18 ibid. , § 103). UN Commission on the Truth for El Salvador, Report ( 19 ICRC, Memorandum on Respect for International Humanitarian Law in Angola ( ibid. , § 110), Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Op , § 113). eration Turquoise ( ibid. , § 111) and Communication to the Press No. 01/58 ( ibid. ́ 20 Geneva Conventions, common Article 3 (cited in Vol. II, Ch. 32, § 2).

225 164 denial of quarter hors de combat Rule 47. Attacking persons who are recognised as is is: hors de combat prohibited. A person (a) anyone who is in the power of an adverse party; (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or (c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape. Practice Volume II, Chapter 15, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts This is a long-standing rule of customary international law already recognised 21 The in the Lieber Code, the Brussels Declaration and the Oxford Manual. Hague Regulations provide that it is especially forbidden “to kill or wound an enemy who, having laid down his arms, or having no longer means of defence, 22 has surrendered at discretion”. Additional Protocol I prohibits attacks against persons recognised as hors de combat and provides that such attacks constitute 23 grave breaches of the Protocol. Under the Statute of the International Crimi- nal Court, “killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion” is a war 24 crime in international armed conflicts. is set hors de combat The prohibition on attacking persons recognised as 25 forth in numerous military manuals. Sweden’s IHL Manual identifies the 21 Lieber Code, Article 71 (cited in Vol. II, Ch. 15, § 218); Brussels Declaration, Article 13(c) ( ibid. , § 219); Oxford Manual, Article 9(b) ( , § 220). ibid. 22 ibid. Hague Regulations, Article 23(c) ( , § 214). 23 ibid. Additional Protocol I, Article 41(1) (adopted by consensus) ( , § 119) and Article 85(3)(e) (adopted by consensus) ( ibid. , § 120). 24 ICC Statute, Article 8(2)(b)(vi) ( ibid. , § 217). 25 See, e.g., the military manuals of Argentina ( , § 126), Australia ( ibid. , §§ 127–128), Belgium ibid. ibid. ibid. ibid. , § 131), Cameroon ( ibid. , § 132), Canada ( ( , § 133), Colombia , §§ 129–130), Benin ( ( , §§ 135–136), Croatia ( ibid. , §§ 137–139), Ecuador ( ibid. , § 140), France ( ibid. , §§ 141–143), ibid. Hungary ( ibid. , § 144), Israel ( ibid. , §§ 145–146), Italy ( ibid. , §§ 147–148), Kenya ( ibid. , § 149), Madagascar ( , § 150), Netherlands ( ibid. , § 151), New Zealand ( ibid. , § 152), Philippines ibid. ( ibid. , § 153), Romania ( ibid. , § 154), Russia ( ibid. , § 155), South Africa ( ibid. , § 156), Spain , § 159), Togo ( ( , § 157), Sweden ( ibid. , § 158), Switzerland ( ibid. ibid. ibid. , § 160) and United States ( ibid. , §§ 161–162).

226 Rule 47 165 hors de combat in Article 41 of prohibition on attacking persons recognised as 26 Additional Protocol I as a codification of customary international law. Vio- 27 lation of this rule is an offence under the legislation of many States. It is 28 es. also referred to in military communiqu It is supported by official state- ́ 29 ments and reported practice. hors de The prohibition on attacking persons combat has been upheld in case-law following the First and Second World 30 Wars. Non-international armed conflicts The rule is based on common Article 3 of the Geneva Conventions, which prohibits “violence to life and person, in particular murder of all kinds” against 31 . hors de combat persons placed This prohibition is repeated in Additional Protocol II, which adds that “it is prohibited to order that there shall be no 32 survivors”. In addition, this rule is contained in other instruments pertaining 33 also to non-international armed conflicts. Military manuals which are applicable in or have been applied in non- international armed conflicts prohibit attacks against persons recognised as 34 . hors de combat Such attacks are also defined as a war crime in the legislation 26 Sweden, IHL Manual ( ibid. , § 158). 27 ibid. , § 163), Australia ( ibid. See, e.g., the legislation of Armenia ( ibid. , , §§ 164–165), Belarus ( § 166), Belgium ( , § 167), Bosnia and Herzegovina ( ibid. , § 168), Canada ( ibid. , § 169), ibid. ibid. ibid. , § 171), Croatia ( ibid. , § 172), Cyprus ( ibid. , § 173), Colombia ( , § 170), Cook Islands ( ibid. , § 175), Germany ( ibid. , § 176), Ireland ( ibid. , § 177), Moldova ( ibid. , § 180), Georgia ( ibid. ibid. Netherlands ( , § 182), Niger ( ibid. , § 184), Norway ( ibid. , § 185), , § 181), New Zealand ( , ibid. Slovenia ( , § 187), United Kingdom ( ibid. , § 188), Yemen ( ibid. , § 186), Tajikistan ( ibid. § 189), Yugoslavia ( ibid. , § 190) and Zimbabwe ( ibid. , § 191); see also the draft legisla- tion of El Salvador ( ibid. , § 174), Jordan ( ibid. , § 178), Lebanon ( ibid. , § 179) and Nicaragua ( ibid. , § 183). 28 See, e.g., Egypt, Military Communiqu ibid. , § 196); Iraq, Military Commu- es Nos. 34 and 46 ( ́ es niqu ́ , § 199). ibid. Nos. 973, 975 and 1902 ( 29 See, e.g., the statements of Chile ( , § 194) and Syria ( ibid. , § 201) and the reported practice ibid. ibid. , § 193), Egypt ( ibid. of Algeria ( ibid. , § 200). , § 195) and Jordan ( 30 Stenger and Cruisus case ibid. , § 328) and Reichsgericht, See, e.g., Germany, Leipzig Court, ( ( ibid. , § 329); United Kingdom, Military Court at Hamburg, Llandovery Castle case Peleus case ( ibid. , § 331), Military Court at Elten, Renoth case ( ibid. , § 332) and Military Court at Hamburg, Von Ruchteschell case ( ibid. , § 333); United States, Military Tribunal at Nuremberg, Von Leeb (The High Command Trial) case ( , § 192) and Military Commission at Rome, Dostler case ibid. ibid. ( , § 334). 31 Geneva Conventions, common Article 3 (cited in Vol. II, Ch. 32, § 2). 32 Additional Protocol II, Article 4 (adopted by consensus) (cited in Vol. II, Ch. 15, § 4). 33 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the ibid. , § 123); Agreement on the Application of IHL between the Parties to the SFRY, para. 6 ( Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 124). 34 See, e.g., the military manuals of Australia ( ibid. , § 127), Benin ( ibid. , § 131), Canada ( ibid. , § 134), Colombia ( , §§ 135–137), Croatia ( ibid. , §§ 137–139), Ecuador ( ibid. , § 140), Italy ibid. ( ibid. , §§ 147–148), Kenya ( ibid. , § 149), Madagascar ( ibid. , § 150), Philippines ( ibid. , § 153), South Africa ( ibid. , § 156) and Togo ( ibid. , § 160).

227 166 denial of quarter 35 36 It is of a number of States. The rule has been applied in national case-law. 37 supported by official statements and other practice. Contrary practice collected by the Special Rapporteurs of the UN Commission on Human Rights and by the ICRC has been condemned as a violation of the 38 rule. The ICRC has called for respect for the prohibition of attacks on persons 39 hors de combat in both international and non-international armed conflicts. Specific categories of persons hors de combat A person hors de combat is a person who is no longer participating in hostilities, by choice or circumstance. Under customary international law, a person can in three situations arising in both international and hors de combat be placed non-international armed conflicts: (i) Anyone who is in the power of an adverse party. It is uncontested that a . This rule is hors de combat person who is in the power of an adverse party is set forth in Additional Protocol I and is implicit in common Article 3 of the 40 Geneva Conventions and in Additional Protocol II. It has been confirmed in 41 numerous military manuals. Respect for and protection of persons who are in the power of an adverse party is a cornerstone of international humanitarian law 35 , § 163), Belarus ( ibid. , § 166), Belgium ( ibid. , § 167), See, e.g., the legislation of Armenia ( ibid. ibid. , § 168), Colombia ( Bosnia and Herzegovina ( , § 170), Croatia ( ibid. , § 172), Georgia ibid. ( , § 175), Germany ( ibid. , § 176), Moldova ( ibid. , § 180), Niger ( ibid. , § 184), Slovenia ( ibid. , ibid. ibid. ibid. , § 189) and Yugoslavia ( ibid. , § 190); see also the § 186), Tajikistan ( , § 187), Yemen ( ibid. , § 174), Jordan ( ibid. , § 178) and Nicaragua ( ibid. , § 183). draft legislation of El Salvador ( 36 See, e.g., Argentina, National Court of Appeals, ( ibid. , § 327); Nigeria, Case Military Junta case ( of 3 September 1968 , § 330). ibid. 37 See, e.g., the statement of Chile ( ibid. , § 194), the practice of Colombia ( ibid. , § 337) and Yugoslavia ( ibid. , § 351) and the reported practice of China ( ibid. , § 365) and Cuba ( ibid. , § 338). 38 See, e.g., UN Commission on Human Rights, Reports of the Special Rapporteur on the Situation of Human Rights in Zaire ( ibid. , § 202), Report of the Independent Expert on the Situation of , § 357) and Report of the Special Rapporteur on Extrajudicial, ibid. Human Rights in Guatemala ( ibid. , § 358) and the practice collected in ICRC archive Summary or Arbitrary Executions ( documents ( ibid. , §§ 383–384, 387, 389 and 393–394). 39 ICRC, Conflict in Southern Africa: ICRC Appeal ( ibid. , § 370), Conflict between Iraq and Iran: ibid. , § 371), Appeal in behalf of civilians in Yugoslavia ( ibid. , § 373), Press Release ICRC Appeal ( ibid. No. 1705 ( ibid. , § 375), Press Release, , § 374), Press Releases Nos. 1712, 1724 and 1726 ( ibid. Tajikistan: ICRC urges respect for humanitarian rules ( , § 376), Memorandum on Respect for International Humanitarian Law in Angola ( ibid. , § 377), Memorandum on Compliance , eration Turquoise ( with International Humanitarian Law by the Forces Participating in Op ibid. ́ § 378), Press Release No. 1792 ( ibid. , § 379), Press Release No. 1793 ( ibid. , § 380), Communica- tion to the Press No. 00/36 ( ibid. , § 381) and Communication to the Press No. 01/58 ( ibid. , § 382). 40 Geneva Conventions, common Article 3 (cited in Vol. II, Ch. 32, § 2); Additional Protocol I, Article 41(2) (adopted by consensus) (cited in Vol. II, Ch. 15, § 215); Additional Protocol II, Article 4 (adopted by consensus). 41 See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 15, § 224), Australia ( ibid. , ibid. , § 233), Cameroon ( ibid. , §§ 234–235), Canada ( ibid. §§ 225–226), Burkina Faso ( , § 236), Congo ( ibid. , § 239), Croatia ( ibid. , § 240), Dominican Republic ( ibid. , § 243), Ecuador ( ibid. , § 244), France ( ibid. , §§ 246 and 248–249), Kenya ( ibid. , § 256), Lebanon ( ibid. , § 259), Madagascar ( , § 260), Mali ( ibid. , § 261), Morocco ( ibid. , § 262), Netherlands ( ibid. , § 26359), New ibid. , § 278), Sweden ibid. , § 266), Peru ( ibid. , § 271), Senegal ( ibid. , § 276), Spain ( ibid. Zealand (

228 Rule 47 167 as reflected in several provisions of the Geneva Conventions and Additional Protocols. Practice, therefore, focuses rather on the treatment to be given to such persons (see in particular Chapters 32 and 37). (ii) Anyone who is defenceless because of unconsciousness, shipwreck, This category is based on the Hague Regulations, common wounds or sickness. Article 3 of the Geneva Conventions and Additional Protocol I, which prohibit 42 43 attacks on defenceless persons. It is found in numerous military manuals. It 44 is contained in the legislation of many States. It is also supported by case-law, 45 official statements and other practice, such as instructions to armed forces. In addition, respect for and protection of the wounded, sick and shipwrecked is a cornerstone of international humanitarian law applicable in both interna- tional and non-international armed conflicts as reflected in several provisions of the Geneva Conventions and their Additional Protocols. Practice, therefore, focuses rather on the treatment to be given to such persons (see Chapter 34). This category is (iii) Anyone who clearly indicates an intention to surrender. based on the Hague Regulations, common Article 3 of the Geneva Conventions 46 47 and Additional Protocol I. It is contained in numerous military manuals. It , § 279), Switzerland ( ibid. , § 280), Uganda ( ( , § 282), United Kingdom ( ibid. , § 283) and ibid. ibid. ibid. United States ( , §§ 287 and 291). 42 ibid. Hague Regulations, Article 23(c) ( , § 214); Geneva Conventions, common Article 3 (cited in Vol. II, Ch. 32, § 2); Additional Protocol I, Article 41(2) (adopted by consensus) (cited in Vol. II, Ch. 15, § 215). 43 , §§ 223–224), Australia ( ibid. , §§ 225–226), See, e.g., the military manuals of Argentina ( ibid. , §§ 228–230), Benin ( ibid. , § 231), Cameroon ( ibid. , § 235), Canada ( ibid. , §§ 236– ibid. Belgium ( 237), Croatia ( , § 241), Dominican Republic ( ibid. , § 243), Ecuador ( ibid. , § 244), El Salvador ibid. ( , § 245), France ( ibid. , § 249), Germany ( ibid. , § 250), Indonesia ( ibid. , § 252), Israel ( ibid. , ibid. ibid. , §§ 254–255), Kenya ( , § 256), South Korea ( ibid. , § 257), Lebanon ( ibid. , § 253), Italy ( ibid. , § 260), Netherlands ( ibid. , §§ 263–264), New Zealand ( ibid. , § 266), § 259), Madagascar ( ibid. ibid. , §§ 268 and 270), Peru ( ibid. , § 271), Philippines ( ibid. , § 273), Russia ( Nigeria ( , § 274), ibid. South Africa ( , § 277), Spain ( ibid. , § 278), Sweden ( ibid. , § 279), Switzerland ( ibid. , § 280), ibid. , §§ 285–291) and Togo ( ibid. , §§ 283–284), United States ( ibid. , § 281), United Kingdom ( ibid. Yugoslavia ( ibid. , § 292). 44 See, e.g., the legislation of Azerbaijan ( ibid. , § 293), Bosnia and Herzegovina ( ibid. , § 294), Canada ( ibid. ibid. , § 297), Congo ( ibid. , § 298), Croatia ( ibid. , § 299), Egypt ( ibid. , , § 296), Colombia ( ibid. , § 302), Ethiopia ( , § 303), Georgia ( ibid. , § 304), Ireland ( ibid. , § 306), § 300), Estonia ( ibid. ibid. ibid. , § 308), Mali ( ibid. , § 309), Netherlands ( ibid. , § 310), New Italy ( , § 307), Lithuania ( ibid. , § 311), Nicaragua ( ibid. , § 312), Norway ( ibid. , § 314), Peru ( ibid. , § 315), Poland Zealand ( ibid. ( ibid. , § 317), Spain ( ibid. , § 319), Sweden ( ibid. , § 320), Switzerland ( ibid. , , § 316), Slovenia ( ibid. , § 323), United States ( ibid. , § 324) and Yugoslavia ( ibid. , § 326); § 321), United Kingdom ( see also the draft legislation of Burundi ( , § 295), El Salvador ( ibid. , § 301), Nicaragua ( ibid. , ibid. § 313) and Trinidad and Tobago ( ibid. , § 322). 45 See, e.g., the case-law of Argentina ( , § 327), Germany ( ibid. , §§ 328–329) and United King- ibid. ibid. ibid. , § 347) and the practice of Egypt dom ( , § 331), the statement of the United States ( ibid. , § 339), Iraq ( ibid. , § 341), United Kingdom ( ibid. , § 344) and United States ( ibid. , § 348). ( 46 Hague Regulations, Article 23(c) ( , § 214); Geneva Conventions, common Article 3 (cited in ibid. Vol. II, Ch. 32, § 2); Additional Protocol I, Article 41(2) (adopted by consensus) (cited in Vol. II, Ch. 15, § 215). 47 ibid. , §§ 223–224), Australia ( ibid. , §§ 225– See, e.g., the military manuals of Argentina ( 226), Belgium ( ibid. , §§ 227–228), Benin ( ibid. , § 231), Burkina Faso ( ibid. , § 233), Cameroon ( , §§ 234–235), Canada ( ibid. , §§ 236–237), Colombia ( ibid. , § 238), Congo ( ibid. , § 239), ibid. Croatia ( ibid. , §§ 241–242), Dominican Republic ( ibid. , § 243), Ecuador ( ibid. , § 244), El Sal- vador ( ibid. , § 245), France ( ibid. , §§ 246–247), Germany ( ibid. , §§ 250–251), Indonesia ( ibid. ,

229 168 denial of quarter 48 It is also supported by is included in the national legislation of many States. 49 official statements and other practice, such as instructions to armed forces. The general tenet that emerges from this practice is that a clear indication of . In land warfare, a unconditional surrender renders a person hors de combat clear intention to surrender is generally shown by laying down one’s weapons and raising one’s hands. Other examples, such as emerging from one’s position 50 displaying a white flag, are mentioned in many military manuals. There are specific examples of ways of showing an intent to surrender in air and naval 51 warfare. The ability to accept surrender under the particular circumstances of combat was discussed by the United Kingdom and the United States in the light of the 52 war in the South Atlantic and the Gulf War respectively. The United Kingdom pointed out that it may not be possible to accept surrender from a unit while under fire from another position. Hence, a party which “takes” surrender is not required to go out to receive surrender; instead, the party offering surrender has to come forward and submit to the control of the enemy forces. The United States took the position that an offer of surrender has to be made at a time when it can be received and properly acted upon and that a last-minute sur- render to an onrushing force may be difficult to accept. The question remains, however, as to how to surrender when physical distance may make it difficult to indicate an intention to surrender or may subject one to charges of desertion. The United States also took the position that retreating combatants, if they do ibid. ibid. , §§ 254–255), Kenya ( ibid. , § 257), South Korea ( ibid. , , § 253), Italy ( § 252), Israel ( , § 259), Madagascar ( ibid. , § 260), Mali ( ibid. , § 261), Morocco ( ibid. , § 262), § 258), Lebanon ( ibid. ibid. , §§ 263–265), New Zealand ( Netherlands ( , § 267), Nigeria ( ibid. , §§ 267–270), Peru ibid. ( , § 271), Philippines ( ibid. , §§ 272–273), Romania ( ibid. , § 274), Russia ( ibid. , § 275), Senegal ibid. ibid. ibid. , § 277), Spain ( ibid. , § 278), Sweden ( ibid. , § 279), Switzerland ( , § 276), South Africa ( ibid. , § 280), Togo ( ibid. , § 281), United Kingdom ( ibid. , §§ 283–284), United States ( ibid. , ( ibid. , § 292). §§ 285–291) and Yugoslavia ( 48 See, e.g., the legislation of Azerbaijan ( , § 293), Bosnia and Herzegovina ( ibid. , § 294), Canada ibid. ibid. , § 296), Congo ( ( , § 298), Croatia ( ibid. , § 299), Estonia ( ibid. , § 302), Ethiopia ( ibid. , ibid. § 303), Georgia ( ibid. , § 304), Germany ( ibid. , § 305), Ireland ( ibid. , § 306), Italy ( ibid. , § 307), Lithuania ( ibid. ibid. , § 309), Netherlands ( ibid. , § 310), New Zealand ( ibid. , , § 308), Mali ( ibid. , § 314), Peru ( , § 315), Poland ( ibid. , § 316), Slovenia ( ibid. , § 317), § 311), Norway ( ibid. , §§ 318–319), Switzerland ( ibid. , § 321), United Kingdom ( ibid. , § 323), United States Spain ( ibid. ibid. , § 324), Venezuela ( ibid. ( ibid. , § 326); see also the draft legislation , § 325) and Yugoslavia ( of Burundi ( , § 295), El Salvador ( ibid. , § 301), Nicaragua ( ibid. , § 313) and Trinidad and ibid. Tobago ( , § 322). ibid. 49 See, e.g., the statements of Australia ( ibid. , § 336) and United States ( ibid. , § 349), the practice of Colombia ( ibid. , § 337), Egypt ( ibid. , § 339), United Kingdom ( ibid. , §§ 345–346), United States ( ibid. ibid. , § 351) and the reported practice of Algeria ( ibid. , , §§ 348–349) and Yugoslavia ( § 335). 50 ibid. , § 230), Benin ( ibid. , § 231), Cameroon ( ibid. , See, e.g., the military manuals of Belgium ( ibid. , § 237), Croatia ( ibid. , § 241), Dominican Republic ( ibid. , § 243), France § 235), Canada ( ( ibid. , § 249), Italy ( ibid. , § 255), Kenya ( ibid. , § 256), Madagascar ( ibid. , § 260), Togo ( ibid. , § 281) and United States ( , § 287). ibid. 51 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 1619; Louise Doswald-Beck (ed.), San Remo Manual on Inter- national Law Applicable to Armed Conflicts at Sea , Cambridge University Press, 1995, § 47.57, p. 135. 52 See Report on UK Practice (cited in Vol. II, Ch. 15, § 411); United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War ( ibid. , § 349).

230 Rule 47 169 not communicate an offer of surrender, whether armed or not, are still subject to attack and that there is no obligation to offer an opportunity to surrender before an attack. Quarter under unusual circumstances of combat The prohibition on attacking a person recognised as hors de combat applies in all circumstances, even when it is difficult to keep or evacuate prisoners, for example, when a small patrol operating in isolation captures a combatant. Such practical difficulties must be overcome by disarming and releasing the 53 This is restated in persons concerned, according to Additional Protocol I. 54 several military manuals. The US Field Manual similarly states that: A commander may not put his prisoners to death because their presence retards his movements or diminishes his power of resistance by necessitating a large guard, or by reason of their consuming supplies, or because it appears certain that they will regain their liberty through the impending success of their forces. It is likewise unlawful for a commander to kill prisoners on grounds of self-preservation, even in 55 the case of airborne or commando operations. Israel’s Manual on the Laws of War and the UK Military Manual contain sim- 56 ilar statements. Additional Protocol I and several military manuals require 57 that all feasible precautions be taken to ensure the safety of released prisoners. In the context of non-international armed conflicts, some armed opposition groups have raised difficulties in providing for detention, but the duty to give 58 per se . quarter has not been challenged Practice recognises that the duty to give quarter is to the benefit of every person taking a direct part in hostilities, whether entitled to prisoner-of-war status or not. This means that mercenaries, spies and saboteurs also have the right to receive quarter and cannot be summarily executed when captured (see also Rules 107–108). Loss of protection According to Additional Protocol I, immunity from attack is conditional on 59 This is also set forth in refraining from any hostile act or attempt to escape. 53 Additional Protocol I, Article 41(3) (adopted by consensus) ( ibid. , § 395). 54 See, e.g., the military manuals of Canada ( ibid. , § 399), France ( ibid. , § 400), Kenya ( ibid. , § 402), Netherlands ( ibid. ibid. , § 404) and Switzerland ( ibid. , § 405). , § 403), Spain ( 55 United States, ( ibid. , § 407). Field Manual 56 Manual on the Laws of War Israel, ibid. , § 401); United Kingdom, Military Manual ( ibid. , ( § 406). 57 Additional Protocol I, Article 41(3) (adopted by consensus) ( , § 395); the military manuals ibid. of Canada ( ibid. , § 399), France ( ibid. , § 400), Kenya ( ibid. , § 402), Spain ( ibid. , § 403) and United Kingdom ( , § 406). ibid. 58 See the practice of armed opposition groups in ICRC archive documents ( ibid. , §§ 418–420). 59 Additional Protocol I, Article 41 (adopted by consensus) ( ibid. , § 215).

231 170 denial of quarter 60 The commission of these acts signifies that the per- several military manuals. and does not qualify for pro- hors de combat son in question is in fact no longer tection under this rule. The Third Geneva Convention specifies that “the use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure, which shall always 61 be preceded by warnings appropriate to the circumstances”. The Conven- 62 tion contains other specific rules applicable to the escape of prisoners of war. Hostile acts have not been defined, but the Commentary on the Additional Protocols gives examples such as resuming combat if the opportunity arises, attempting to communicate with one’s own party and destroying installations 63 of the enemy or one’s own military equipment. Rule 48. Making persons parachuting from an aircraft in distress the object of attack during their descent is prohibited. Practice Volume II, Chapter 15, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The prohibition on attacking persons parachuting from an aircraft in distress during their descent was already recognised in the Hague Rules of Air War- 64 and was considered fare, drafted by a commission of jurists in 1922–1923, 65 to reflect a rule of customary international law. As such, it was codified in 66 Article 42 of Additional Protocol I. Article 42 was not, however, adopted by consensus because some States felt that persons landing in their own territory could not be considered . But this view was defeated and in hors de combat the end the issue was resolved in favour of considering such persons as hors 60 See, e.g., the military manuals of Argentina ( ibid. , § 224), Australia ( ibid. , §§ 225–226), Belgium ( ibid. , § 230), Canada ( ibid. , §§ 236–237), France ( ibid. , § 249), Kenya ( ibid. , § 256), Netherlands ( ibid. ibid. , § 266), Spain ( ibid. , § 278), Switzerland ( ibid. , § 280) and , § 263), New Zealand ( ibid. United Kingdom ( , § 283). 61 Third Geneva Convention, Article 42 (cited in Vol. II, Ch. 32, § 659). 62 Third Geneva Convention, Articles 91–94. 63 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, §§ 1621–1622. 64 Hague Rules of Air Warfare, Article 20 (cited in Vol. II, Ch. 15, § 423). 65 Annotated Supplement to the Naval Handbook ( ibid. , § 470). See United States, 66 Additional Protocol I, Article 42 ( ibid. , § 421). See Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols ( ibid. , § 481); Michael Bothe, Karl Joseph Partsch, Waldemar A. Solf (eds.), New Rules for Victims of Armed Conflicts ( ibid. , § 485).

232 Rule 48 171 67 during their descent, wherever they might land. de combat A parallel can be drawn here with the shipwrecked, who are considered to be hors de combat (in both international and non-international armed conflicts) even though they may swim ashore or be collected by a friendly ship and resume fighting. In this respect, it is interesting to note that persons bailing out of an aircraft in distress have been called “shipwrecked in the air”. This rule is now generally accepted and, as a result, no reservations have been made to Article 42. In addition, numerous military manuals prohibit attacks against persons 68 parachuting from an aircraft in distress. These include manuals of States not, 69 or not at the time, party to Additional Protocol I. This rule is also supported 70 es, and reported practice. by official statements, such as military communiqu ́ Non-international armed conflicts The prohibition on attacking persons parachuting from an aircraft in distress is also applicable in non-international armed conflicts on the basis of common Article 3 of the Geneva Conventions, which protects persons placed hors de 71 combat by “any” cause. During the negotiation of the elements of war crimes against common Article 3 in the framework of the Statute of the International Criminal Court, the drafters understood that the term should hors de combat not be interpreted in a narrow sense, and made reference to Article 42 of Addi- 72 tional Protocol I, in addition to the examples contained in common Article 3. This rule is contained in several military manuals which are applicable in or 73 have been applied in non-international armed conflicts. 67 The military and humanitarian reasons for which this decision was taken are explained in Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 1642. 68 See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 15, §§ 424–425), Australia ( , §§ 426–427), Belgium ( ibid. , §§ 428–429), Benin ( ibid. , § 430), Burkina Faso ( ibid. , § 431), ibid. ibid. ibid. , § 434), Congo ( ibid. , § 435), Croatia ( ibid. , § 436), Cameroon ( , §§ 432–433), Canada ( ibid. , § 437), Ecuador ( ibid. , § 438), France ( ibid. , §§ 439–441), Germany Dominican Republic ( ibid. ibid. ( , § 443), Israel ( ibid. , § 444), Italy ( ibid. , §§ 446–447), Kenya ( ibid. , , § 442), Indonesia ( ibid. , § 449), Madagascar ( ibid. , § 450), Mali ( ibid. , § 451), Morocco ( ibid. , § 448), Lebanon ( § 452), Netherlands ( ibid. , § 453), New Zealand ( ibid. , § 454), Nigeria ( ibid. , § 455), Russia ( ibid. ibid. , § 457), South Africa ( ibid. , § 458), Spain ( ibid. , § 459), Sweden ( ibid. , , § 456), Senegal ( ibid. , § 461), Togo ( , § 462), United Kingdom ( ibid. , §§ 463–464), United § 460), Switzerland ( ibid. , §§ 465–470) and Yugoslavia ( ibid. , § 471). States ( ibid. 69 ibid. , § 432), France ( ibid. , § 439), Indonesia ( ibid. See the military manuals of Cameroon ( , § 443), Israel ( , § 444), Kenya ( ibid. , § 448), Lebanon ( ibid. , § 449), Mali ( ibid. ibid. , § 451), Morocco ( ibid. , § 452), United Kingdom ( ibid. , §§ 463–464) and United States ( ibid. , §§ 465– 470). 70 See, e.g., Egypt, Military Communiqu es Nos. 34 and 46 ( ibid. , § 476); Iran, Military Communiqu e ́ ́ ibid. , § 477); Iraq, Military Communiqu of 29 September 1980 ( es Nos. 541, 683, 996 and 1383 and ́ Reply by the Ministry of Defence to a questionnaire ( ibid. , § 478); United States, Remarks of the Deputy Legal Adviser of the Department of State ( ibid. , § 480) and Letter from the Department of the Army to the legal adviser of the US Army forces deployed in the Gulf region ( ibid. , § 481); reported practice of Pakistan ( ibid. , § 479). 71 Geneva Conventions, common Article 3 (cited in Vol. II, Ch. 32, § 2). 72 Knut D ormann, Elements of War Crimes under the Rome Statute of the International Criminal ̈ Court: Sources and Commentary , Cambridge University Press, 2003, p. 389. 73 See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 15, § 426), Benin ( ibid. , § 430), Croatia ( ibid. , § 436), Ecuador ( ibid. , § 438), Germany ( ibid. , § 442), Italy ( ibid. , §§ 446–447),

233 172 denial of quarter As explained above, the main concern about considering persons parachuting from an aircraft in distress as hors de combat during their descent was that they might land in their own territory. The international community has resolved hors de combat during the this issue in favour of considering such persons as time they are in the air, wherever they may land afterwards. Hence, there is no practical impediment to applying this rule in non-international armed conflicts and no opinion has been expressed that it should be so limited. Interpretation Practice indicates that upon reaching the ground, persons parachuting from an aircraft in distress are to be given an opportunity to surrender, unless it is apparent that they are engaging in a hostile act. This principle is set forth in 74 75 Additional Protocol I. The It is also contained in many military manuals. Commentary on the Additional Protocols explains that this rule establishes a presumption that, until they have made the opposite intention known, downed 76 aircrew intend to surrender. The US Air Force Pamphlet specifies, however, that combatants parachuting from an aircraft in distress and landing uninjured behind their own lines may be attacked, since an offer to surrender would be 77 impossible to accept. This is in conformity with the explanation provided concerning the definition of surrender (see commentary to Rule 47). This rule is to the benefit of all crew of an aircraft in distress, civilians and combatants alike, but does not apply to troops that are airborne as part of a 78 military operation and that are not bailing out in distress. ibid. , § 448), Lebanon ( ibid. , § 449), Madagascar ( ibid. , § 450), South Africa ( ibid. , § 458), Kenya ( ibid. Togo ( ibid. , § 471). , § 462) and Yugoslavia ( 74 Additional Protocol I, Article 42 ( , § 421). ibid. 75 See, e.g., the military manuals of Argentina ( ibid. , § 425), Australia ( ibid. , §§ 426–427), Belgium ibid. , §§ 428–429), Cameroon ( ibid. , § 432), Canada ( ibid. , § 434), Dominican Republic ( ibid. , ( ibid. § 437), Ecuador ( ibid. , § 441), Indonesia ( ibid. , § 443), Kenya ( ibid. , § 448), , § 438), France ( Netherlands ( , § 453), New Zealand ( ibid. , § 454), Spain ( ibid. , § 459), Sweden ( ibid. , § 460), ibid. Switzerland ( ibid. , § 461) and United States ( ibid. , §§ 466–467 and 469–470). 76 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional ( ibid. Protocols , § 486). 77 Air Force Pamphlet ibid. , § 466). United States, ( 78 , §§ 424–425), Australia ( ibid. , §§ 426–427), See, e.g., the military manuals of Argentina ( ibid. ibid. , §§ 428–429), Benin ( ibid. , § 430), Burkina Faso ( Belgium ( , § 431), Cameroon ( ibid. , ibid. §§ 432–433), Canada ( , § 434), Congo ( ibid. , § 435), Dominican Republic ( ibid. , § 436), ibid. Ecuador ( , § 438), France ( ibid. , §§ 439–441), Germany ( ibid. , § 442), Indonesia ( ibid. , ibid. § 443), Israel ( ibid. , §§ 444–445), Italy ( ibid. , § 446), Kenya ( ibid. , § 448), Lebanon ( ibid. , § 449), Mali ( , § 451), Morocco ( ibid. , § 452), Netherlands ( ibid. , § 453), New Zealand ( ibid. , ibid. § 454), Nigeria ( ibid. , § 455), Russia ( ibid. , § 456), Senegal ( ibid. , § 457), South Africa ( ibid. , § 458), , § 462), United Spain ( , § 459), Sweden ( ibid. , § 460), Switzerland ( ibid. , § 461), Togo ( ibid. ibid. Kingdom ( ibid. , §§ 463–464), United States ( ibid. , §§ 465–467 and 469) and Yugoslavia ( ibid. , § 471).

234 chapter 16 DESTRUCTION AND SEIZURE OF PROPERTY Rule 49. The parties to the conflict may seize military equipment belonging to an adverse party as war booty. Practice Volume II, Chapter 16, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in international armed conflicts. International armed conflicts The rule whereby a party to the conflict may seize military equipment belong- 1 It reflects ing to an adverse party as war booty is set forth in the Lieber Code. long-standing practice in international armed conflicts. It is also implicit in the Hague Regulations and the Third Geneva Convention, which require that prisoners of war must be allowed to keep all their personal belongings (as well 2 as protective gear). 3 This rule is also contained in numerous military manuals. As Australia’s Defence Force Manual explains, “booty includes all articles captured with pris- 4 oners of war and not included under the term ‘personal effects’”. The rule has 5 also been referred to in case-law. 1 Lieber Code, Article 45 (cited in Vol. II, Ch. 16, § 4). 2 Hague Regulations, Article 4 ( ibid. , § 2); Third Geneva Convention, Article 18, first paragraph ( , § 3). ibid. 3 See, e.g., the military manuals of Argentina ( ibid. , § 5), Australia ( ibid. , §§ 6–7), Belgium ( ibid. , § 9), Benin ( ibid. , § 10), Cameroon ( ibid. , § 12), Canada ( ibid. , §§ 13–14), Dominican Republic ( ibid. ibid. , § 16), Germany ( ibid. , § 17), Hungary ( ibid. , § 18), Israel , § 15), France ( ( , § 19), Kenya ( ibid. , § 20), Madagascar ( ibid. , § 21), Netherlands ( ibid. , § 22), New Zealand ibid. ( ibid. , § 23), Spain ( ibid. , § 25), Togo ( ibid. , § 26), United Kingdom ( ibid. , § 27) and United States ( , §§ 29–31). ibid. 4 Australia, Defence Force Manual ( ibid. , § 7). 5 See, e.g., Israel, High Court, Al-Nawar case ( ibid. , § 39). 173

235 174 destruction and seizure of property According to the Lieber Code, war booty belongs to the party which seizes it 6 and not to the individual who seizes it. This principle is reflected in numer- 7 8 ous military manuals. It is also supported in national case-law. As a result, individual soldiers have no right of ownership over or possession of military equipment thus seized. Some manuals explicitly state that it is prohibited for 9 soldiers to take home “war trophies”. It has been reported that in the United Kingdom soldiers have been court-martialled for trying to smuggle out weapons 10 taken from the adversary following the Gulf War. Practice also indicates that booty may be used without restriction and does 11 not have to be returned to the adversary. Non-international armed conflicts With respect to non-international armed conflicts, no rule could be identi- fied which would allow, according to international law, the seizure of military equipment belonging to an adverse party, nor was a rule found which would prohibit such seizure under international law. Definition Numerous military manuals define war booty as enemy military objects (or 12 equipment or property) captured or found on the battlefield. Several other 13 With manuals specify that it must concern movable “public” property. respect to private property found on the battlefield, the UK Military Manual and US Field Manual specify that to the extent that they consist of arms, ammu- nition, military equipment and military papers, they may be taken as booty as 14 well. In the Al-Nawar case before Israel’s High Court in 1985, Judge Shamgar held that: 6 ibid. Lieber Code, Article 45 ( , § 4). 7 See, e.g., the military manuals of Argentina ( ibid. , §§ 6–7), Benin ibid. , § 5), Australia ( , § 10), Bosnia and Herzegovina ( ibid. , § 11), Canada ( ibid. , § 13), Germany ( ibid. , § 17), ( ibid. ibid. , § 18), Israel ( ibid. , § 19), Kenya ( Hungary ( , § 20), Madagascar ( ibid. , § 21), Netherlands ibid. ( , § 22), New Zealand ( ibid. , § 23), Spain ( ibid. , § 25), Togo ( ibid. , § 26), United Kingdom ibid. ( ibid. , § 27) and United States ( ibid. , § 29). 8 See, e.g., Israel, High Court, Al-Nawar case ibid. , § 39) and United States, Court of Claims, ( ( ibid. Morrison case , § 41). 9 ibid. , § 14) and United States ( ibid. See, e.g., the military manuals of Canada ( , § 32). 10 See the Report on UK Practice ( ibid. , § 40). 11 ibid. , § 10), Cameroon ( ibid. , § 12), France ( ibid. , § 16), See, e.g., the military manuals of Benin ( ibid. Kenya ( ibid. , § 21), Netherlands ( ibid. , § 22) and Togo ( ibid. , § 26). , § 20), Madagascar ( 12 See, e.g., the military manuals of Australia ( ibid. , §§ 6–7), Benin ( ibid. , § 10), Cameroon ( ibid. , § 12), France ( ibid. ibid. , § 18), Kenya ( ibid. , § 20), Madagascar ( ibid. , § 21), , § 16), Hungary ( ibid. , § 22), Spain ( ibid. , § 25) and Togo ( ibid. , § 26). Netherlands ( 13 See, e.g., the military manuals of Argentina ( ibid. , § 5), Canada ( ibid. , § 13), Germany ( ibid. , § 17), New Zealand ( , § 23), United Kingdom ( ibid. , § 27) and United States ( ibid. , § 29). ibid. 14 , § 29). Military Manual ( ibid. , § 27); United States, Field Manual ( ibid. United Kingdom,

236 Rule 50 175 All movable State property captured on the battlefield may be appropriated by the capturing belligerent State as booty of war, this includes arms and ammunition, depots of merchandise, machines, instruments and even cash. All private property actually used for hostile purposes found on the battlefield or 15 in a combat zone may be appropriated by a belligerent State as booty of war. The definition of booty as used by Judge Shamgar goes beyond military equip- ment and relies on the wider definition found in Article 53 of the Hague Reg- ulations, which defines the objects that may be seized in occupied territory as including “cash, funds, and realizable securities which are strictly the prop- erty of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for 16 military operations”. To the extent that these objects may be seized, they are in effect war booty, even though technically they may not be captured or found on the battlefield. This link is also made in the military manuals of France, 17 Germany and the Netherlands. Germany’s manual, for example, states that “movable government property which may be used for military purposes shall become spoils of war”. Special rules The capture of military medical units, both mobile and fixed, and military med- 18 Mobile medical ical transports is governed by the First Geneva Convention. units must be reserved for the care of the wounded and sick. Fixed medical units may not be diverted from their intended purpose as long as they are required for the care of the wounded and sick. Additional Protocol I lays down further rules on medical ships and air- 19 craft. The capture of the materiel and buildings of military units perma- nently assigned to civil defence organisations is also regulated in Additional 20 Protocol I. Rule 50. The destruction or seizure of the property of an adversary is prohibited, unless required by imperative military necessity. Practice Volume II, Chapter 16, Section B. 15 Al-Nawar case ( Israel, High Court, , § 39). ibid. 16 Hague Regulations, Article 53 ( ibid. , § 245). 17 France, LOAC Manual ( ibid. , § 16); Germany, Military Manual ( ibid. , § 17); Netherlands, Military Manual ( ibid. , § 22). 18 First Geneva Convention, Articles 33 and 35. 19 20 Additional Protocol I, Articles 22, 23 and 30. Additional Protocol I, Article 67.

237 176 destruction and seizure of property Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts This is a long-standing rule of customary international law already recognised in the Lieber Code and the Brussels Declaration and codified in the Hague 21 Regulations. The violation of this rule through “extensive destruction and appropriation of property, not justified by military necessity and carried out 22 unlawfully and wantonly,” is a grave breach under the Geneva Conventions. Under the Statute of the International Criminal Court, “destroying or seiz- ing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war” constitutes a war crime in international 23 armed conflicts. With respect to the requirement that the destruction be extensive for it to constitute a grave breach, the International Criminal Tri- ˇ ́ c case that “the notion of Bla bunal for the Former Yugoslavia stated in the ski ‘extensive’ is evaluated according to the facts of the case – a single act, such as the destruction of a hospital, may suffice to characterise an offence under this 24 count”. 25 It is an offence under The rule is contained in numerous military manuals. the legislation of many States to destroy or seize the property of an adversary 26 unless it is required by imperative military necessity. The rule was applied 21 Lieber Code, Articles 15–16 (cited in Vol. II, Ch. 16, §§ 57–58); Brussels Declaration, Article ibid. , § 60); Hague Regulations, Article 23(g) ( , § 51). 13(g) ( ibid. 22 , § 53); Second Geneva Convention, Article 51 ( First Geneva Convention, Article 50 ( , ibid. ibid. ibid. , § 53). § 53); Fourth Geneva Convention, Article 147 ( 23 ICC Statute, Article 8(2)(b)(xiii) ( ibid. , § 55). 24 ˇ ́ ski Bla c case , Judgement ( ibid. , § 239). ICTY, 25 See, e.g., the military manuals of Argentina ( ibid. , §§ 72–73), Belgium ibid. , §§ 70–71), Australia ( , §§ 74–75), Benin ( ibid. , § 76), Cameroon ( ibid. , § 77), Canada ( ibid. , §§ 78–79), Colombia ( ibid. ibid. , § 80), Dominican Republic ( ibid. , § 82), Ecuador ( ibid. , § 83), France ( ibid. , §§ 84–87), ( ibid. , § 88), Israel ( ibid. , § 90), Italy ( ibid. , §§ 91–92), Kenya ( ibid. , § 93), South Korea Germany ( ibid. ibid. ibid. , § 95), Madagascar ( ( , § 96), Netherlands ( ibid. , § 97), New Zealand , § 94), Lebanon ( ( , § 98), Nigeria ( ibid. , §§ 100–102), Peru ( ibid. , § 103), Philippines ( ibid. , § 104), Romania ibid. ( ibid. , § 105), Russia ( ibid. , § 106), Senegal ( ibid. , § 107), South Africa ( ibid. , § 108), Spain ( ibid. , § 109), Sweden ( ibid. ibid. , § 111), Togo ( ibid. , § 112), United Kingdom , § 110), Switzerland ( ibid. , §§ 113–114) and United States ( , §§ 115–120). ( ibid. 26 ibid. ibid. , §§ 123–125), Azerbaijan See, e.g., the legislation of Armenia ( , § 122), Australia ( , § 126), Bangladesh ( ( , § 127), Barbados ( ibid. , § 128), Belarus ( ibid. , § 129), Belgium ibid. ibid. ibid. , § 130), Bosnia and Herzegovina ( ( , § 131), Botswana ( ibid. , § 132), Bulgaria ( ibid. , ibid. § 133), Canada ( , §§ 136 and 138), Chile ( ibid. , § 139), Congo ( ibid. , § 142), Cook Islands ibid. ( , § 143), Croatia ( ibid. , § 144), Cuba ( ibid. , § 145), Cyprus ( ibid. , § 146), Czech Republic ibid. ( ibid. , § 147), El Salvador ( ibid. , §§ 149–150), Estonia ( ibid. , § 151), Georgia ( ibid. , § 154), Ger- many ( ibid. ibid. , § 157), Iraq ( ibid. , § 158), Ireland ( ibid. , § 159), Israel ( ibid. , , § 155), India ( ibid. , §§ 161–162), Kenya ( ibid. , § 165), Latvia ( ibid. , § 166), Lithuania ( ibid. , § 160), Italy ( § 168), Luxembourg ( ibid. , §§ 169–170), Malawi ( ibid. , § 171), Malaysia ( ibid. , § 172), Mali ( , § 174), Mauritius ( ibid. , § 175), Mexico ( ibid. , § 176), Moldova ( ibid. , § 177), Mozambique ibid. ( ibid. , § 178), Netherlands ( ibid. , §§ 179–180), New Zealand ( ibid. , §§ 181–182), Nicaragua ( ibid. , §§ 183–184), Niger ( ibid. , § 185), Nigeria ( ibid. , § 186), Norway ( ibid. , § 187), Papua New Guinea

238 Rule 50 177 27 Several indictments before the in several cases after the Second World War. International Criminal Tribunal for the Former Yugoslavia are based on this ˇ ́ ́ ˇ Bla rule, and in the c and c case Cerkez case , the accused were and Kordi ski 28 found guilty of its violation. Non-international armed conflicts Under the Statute of the International Criminal Court, “destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict” constitutes a war crime in non- 29 international armed conflicts. This rule is included in military manuals which are applicable in or have 30 been applied in non-international armed conflicts. Its violation is an offence 31 under the legislation of many States. No official contrary practice was found with respect to either international or non-international armed conflicts. , § 189), Paraguay ( ibid. , § 190), Peru ( ( , § 181), Philippines ( ibid. , § 192), Portugal ibid. ibid. ibid. ibid. , § 194), Seychelles ( ibid. , § 196), Singapore ( ibid. , § 197), Slovakia ( , § 193), Romania ( , § 198), Slovenia ( , §§ 200–201), Tajikistan ( , § 199), Spain ( ibid. ibid. ibid. , § 205), Uganda ( ibid. ibid. ibid. , § 209), United Kingdom ( ibid. , §§ 210–211), United States ( ibid. , ( , § 207), Ukraine ( ibid. , § 215), Vanuatu ( ibid. §§ 212–213), Uzbekistan ( ibid. , § 218), Yugoslavia , § 216), Vietnam ( ( , § 219) and Zimbabwe ( ibid. , § 220); see also the draft legislation of Argentina ( ibid. , § 121), ibid. ibid. , § 134), Jordan ( , § 164), Lebanon ( ibid. , § 167), Sri Lanka ( ibid. , § 204) and Burundi ( ibid. , § 206). ibid. Trinidad and Tobago ( 27 ( ibid. , § 221); See, in particular, France, Permanent Military Tribunal at Dijon, Holstein case ( ibid. , § 222); Netherlands, General Devastation case Germany, Oberlandsgericht of Dresden, Wingten case ( ibid. , § 224); United States, Military Tribunal at Special Court of Cassation, List (Hostages Trial) case ibid. Nuremberg, , § 225) and Von Leeb (The High Command Trial) ( ( , § 226). case ibid. 28 ́ ˇ ́ , Initial Indictment and Review of the Indictment ( ibid. ICTY, Karad Nikoli , § 236), c case c and zi ́ ́ , First Indictment and Review of the Indictments ( ibid. Mladi Raji c case c case , Initial , § 237), ́ ˇ , § 238), Bla ski Indictment and Review of the Indictment ( c case , Judgement ( ibid. , § 239), ibid. ˇ ́ Kordi Cerkez case , Judgement ( ibid. , § 240). and c and 29 ibid. , § 56). ICC Statute, Article 8(2)(e)(xii) ( 30 ibid. , § 72), Benin ( See, e.g., the military manuals of Australia ( , § 76), Canada ( ibid. , § 79), ibid. ibid. , § 80), Ecuador ( ibid. , § 83), Germany ( ibid. , § 88), Italy ( ibid. , §§ 91–92), Kenya Colombia ( ibid. , § 93), Lebanon ( ibid. , § 95), Madagascar ( ibid. , § 96), Nigeria ( ibid. , §§ 100 and 102), Peru ( ibid. , § 112). ibid. , § 104), South Africa ( ibid. , § 108) and Togo ( ibid. ( , § 103), Philippines ( 31 See, e.g., the legislation of Armenia ( , § 122), Australia ( ibid. , § 125), Azerbaijan ( ibid. , ibid. ibid. , § 129), Belgium ( ibid. , § 130), Bosnia and Herzegovina ( ibid. , § 131), § 126), Belarus ( Cambodia ( ibid. , § 135), Canada ( ibid. , § 138), Congo ( ibid. , § 142), Croatia ( ibid. , § 144), El Salvador ( ibid. ibid. , § 151), Georgia ( ibid. , § 154), Germany ( ibid. , , §§ 149–150), Estonia ( ibid. ibid. , § 168), Moldova ( ibid. , § 177), Netherlands § 155), Latvia ( , § 166), Lithuania ( ibid. , § 180), New Zealand ( ibid. , § 182), Nicaragua ( ibid. ( ibid. , § 185), Por- , § 184), Niger ( tugal ( ibid. , § 193), Slovenia ( ibid. , § 199), Spain ( ibid. , §§ 200–201), Tajikistan ( ibid. , § 205), United Kingdom ( ibid. , § 211), Uzbekistan ( ibid. , § 215) and Yugoslavia ( ibid. , § 219); see also the legislation of Bulgaria ( , § 133), Czech Republic ( ibid. , § 147), Italy ( ibid. , §§ 161–162), ibid. Mozambique ( ibid. , § 178), Nicaragua ( ibid. , § 183), Paraguay ( ibid. , § 190), Peru ( ibid. , § 191), Romania ( , § 194) and Slovakia ( ibid. , § 198), the application of which is not excluded in ibid. time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 121), Burundi ( ibid. , § 134), Jordan ( ibid. , § 164) and Trinidad and Tobago ( ibid. , § 206).

239 178 destruction and seizure of property Rule 51. In occupied territory: (a) movable public property that can be used for military operations may be confiscated; (b) immovable public property must be administered according to the rule of usufruct; and (c) private property must be respected and may not be confiscated except where destruction or seizure of such property is required by imperative military necessity. Practice Volume II, Chapter 16, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in international armed conflicts. Movable public property The rule that all movable public property that may be used for military oper- ations may be confiscated is a long-standing rule of customary international law already recognised in the Lieber Code, the Brussels Declaration and the 32 It is codified in the Hague Regulations, which provides that Oxford Manual. the following may be confiscated: “cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which 33 may be used for military operations”. 34 It was applied in several This rule is set forth in numerous military manuals. 35 cases after the Second World War. The military manuals of Australia, Canada and New Zealand define confisca- tion as “the taking of enemy public movable property without the obligation to 36 compensate the State to which it belongs”. Technically, this differs from war booty to the extent that the latter only concerns military equipment captured or found on the battlefield, but both categories have been blurred in practice as 32 ibid. Lieber Code, Article 31 ( ibid. , § 247); Oxford , § 246); Brussels Declaration, Article 6 ( Manual, Article 50 ( ibid. , § 248). 33 Hague Regulations, Article 53 ( ibid. , § 245). 34 See, e.g., the military manuals of Argentina ( ibid. , § 251), Australia ( ibid. , § 252), Canada ( ibid. , § 253), France ( ibid. ibid. , § 255), Italy ( ibid. , § 256), New Zealand ( ibid. , , § 254), Germany ( ibid. ibid. § 257), Nigeria ( , § 261) and United States ( ibid. , § 262). , § 258), United Kingdom ( 35 Flick case ( ibid. , § 268), Krupp See, in particular, United States, Military Tribunal at Nuremberg, case ( ibid. , § 269) and Krauch (I. G. Farben Trial) case ( ibid. , § 270). 36 ( Defence Force Manual ( ibid. , § 252); Canada, LOAC Manual Australia, ibid. , § 253); New Zealand, Military Manual ( ibid. , § 257).

240 Rule 51 179 the applicable regime is the same: they may be taken without compensation. 37 Germany’s Military Manual, for example, refers to both as “spoils of war”. According to the Hague Regulations the property of municipalities and of institutions dedicated to religion, charity and education, the arts and sciences, 38 even when State property, shall be treated as private property. As a result, it is prohibited to seize or destroy such property, including historic monuments and works of art and science (see Rule 40). Immovable public property The rule that immovable public property must be administered according to the rules of usufruct is a long-standing rule of customary international law already recognised in the Lieber Code, the Brussels Declaration and the Oxford 39 It is codified in the Hague Regulations as follows: Manual. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied territory. It must safeguard the capital of these 40 properties, and administer them in accordance with the rules of usufruct. 41 This rule is contained in several military manuals. The manuals of Aus- tralia, Canada and New Zealand explain that, as a result, “enemy public immov- 42 able property may be administered and used but it may not be confiscated”. 43 This rule was applied in several cases after the Second World War. Several military manuals explicitly apply to immovable public property the principle that property of the adversary may be destroyed in case of imperative 44 military necessity (see Rule 50). Private property The protection of private property against confiscation is a long-standing rule of customary international law already recognised in the Lieber Code, the Brussels 37 38 ( ibid. , § 255). Hague Regulations, Article 56. Germany, Military Manual 39 Lieber Code, Article 31 (cited in Vol. II, Ch. 16, § 284); Brussels Declaration, Article 7 ( , ibid. ibid. , § 286). § 285); Oxford Manual, Article 52 ( 40 Hague Regulations, Article 55 ( ibid. , § 283). 41 See, e.g., the military manuals of Argentina ( ibid. , § 288), Australia ( ibid. , § 289), Canada ( ibid. , § 290), Germany ( ibid. ibid. , § 292), New Zealand ( ibid. , § 293), Switzerland ( ibid. , , § 291), Italy ( ibid. ibid. , § 298). § 296), United Kingdom ( , § 297) and United States ( 42 Defence Force Manual ( ibid. , § 289); Canada, Australia, ( ibid. , § 290); New LOAC Manual Zealand, Military Manual ( ibid. , § 293). 43 See, in particular, Poland, Supreme National Tribunal, Greiser case ( ibid. , § 302); United States, Military Tribunal at Nuremberg, ( ibid. , § 303), Krupp case ( ibid. , § 304) and Krauch Flick case (I. G. Farben Trial) case ( ibid. , § 305). 44 ibid. ibid. , § 290), New Zealand ( ibid. , § 293), Nigeria ( See, e.g., the military manuals of Canada ( , § 294), United Kingdom ( ibid. , § 297) and United States ( ibid. , § 298).

241 180 destruction and seizure of property 45 The prohibition of confiscation of private Declaration and the Oxford Manual. 46 property is codified in Article 46 of the Hague Regulations. This prohibition does not mean that no private property may ever be seized because, as stated in Article 53 of the Hague Regulations: All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things . . . depots of arms, and, generally, all kinds of munitions of war, may be seized, even if they belong to private individuals, 47 but they must be restored and compensation fixed when peace is made. 48 This rule is contained in numerous military manuals. As explained in Aus- tralia’s Defence Force Manual, “these objects may be seized by, but they do not become the property of, the occupying power. The seizure operates merely as a transfer of the possession of the object to the occupying power while owner- 49 ship remains with the private owner.” According to New Zealand’s Military Manual, within this category fall: cables, telegraph and telephone plant; television, telecommunications and radio equipment; horses, motorcars, bicycles, carts and carriages; railways and railway plant, tramways; ships in port, river and canal craft; aircraft of all descriptions, except ambulance aircraft; sporting weapons; and all kinds of property which could 50 serve as war material. Several military manuals explicitly apply to private property the principle that property of the adversary may be destroyed or seized in case of imperative 51 military necessity (see Rule 50). The protection of private property against confiscation was confirmed in 52 national case-law after the Second World War and in several other cases. In the 45 , § 319), Article 37 ( ibid. , § 320) and Article 38 ( ibid. , § 321); Brussels Lieber Code, Article 22 ( ibid. Declaration, Article 38 ( , § 322); Oxford Manual, Article 54 ( ibid. , § 323). ibid. 46 ibid. , § 317). Hague Regulations, Article 46 ( 47 ibid. , § 317). Hague Regulations, Article 53 ( 48 , § 327), Australia ( See, e.g., the military manuals of Argentina ( , § 329), Benin ( ibid. , ibid. ibid. ibid. , §§ 333–334), Colombia ( ibid. , §§ 335–337), Germany ( ibid. § 330), Canada ( , § 342), Hungary ( , § 343), Indonesia ( ibid. , § 344), Israel ( ibid. , § 345), Italy ( ibid. , § 346), New Zealand ibid. ibid. , § 349), Nigeria ( ibid. , §§ 350–352), Peru ( ibid. , § 353), Philippines ( ibid. , § 354), Romania ( ( ibid. , § 356), South Africa ( ibid. , § 357), Switzerland ( ibid. , § 358), Togo ( ibid. , § 359), Uganda ( ibid. ibid. , § 362) and United States ( ibid. , §§ 363–364 and 367). , §§ 360–361), United Kingdom ( 49 Australia, ibid. , § 329). Defence Force Manual ( 50 New Zealand, ( ibid. , § 349). Military Manual 51 ibid. , § 358), United Kingdom ( ibid. , § 362) and See, e.g., the military manuals of Switzerland ( United States ( ibid. , §§ 363 and 365). 52 ́ See, in particular, Bosnia and Herzegovina, Cantonal Court of Bihac, c case ( ibid. , § 405); Bijeli Takashi China, War Crimes Military Tribunal of the Ministry of National Defence at Nanking, Sakai case ( ibid. , § 406); France, Permanent Military Tribunal at Clermont-Ferrand, Szabados case ( ibid. , § 408); France, Permanent Military Tribunal at Metz, Rust case ( ibid. , § 409); France, General Tribunal at Rastadt of the Military Government for the French Zone of Occupation in Germany, ( ibid. , § 410); Germany, Higher Regional Court at D Roechling case usseldorf and ̈ ́ Federal Supreme Court, c case ( ibid. Jorgi Ayub case ( ibid. , § 412) and , § 411); Israel, High Court, Sakhwil case ( ibid. , § 413); Japan, District Court of Chiba, Religious Organisation Hokekyoji Suikosha case case ibid. , § 415); Japan, District Court of Tokyo, Takada case ( ibid. , § 416) and ( ( ibid. , § 417); Netherlands, Special Court of Cassation, Esau case ( ibid. , § 418); Netherlands,

242 Rule 51 181 before the Israeli High Court in 1985, Judge Shamgar considered Al-Nawar case that Article 46 of the Hague Regulations did not extend to property “actually 53 in use by the hostile army”. The Hague Regulations provides detailed rules with respect to contributions in kind and services, known as requisitions, demanded from the population and authorities of the occupied territory to satisfy the needs of the occupying forces: Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in pro- portion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country. Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied. Contributions in kind shall as far as possible be paid for in cash; if not, a receipt shall be given and the payment of the 54 amount due shall be made as soon as possible. 55 Their violation These rules are incorporated in many military manuals. 56 constitutes an offence under the legislation of many States. There exist further detailed rules which restrict the requisitioning of specific types of 57 58 objects: property of aid societies; civilian hospitals in occupied territory; 59 civil defence materiel and buildings in occupied territories. The principal rule of respect for private property is explicitly set forth in some 60 manuals which are applicable in non-international armed conflicts. This rule does not, however, establish a specific separate rule outside the prohibition of destruction or seizure except in case of imperative military necessity (see Rule 50) and the prohibition of pillage (see Rule 52). No rule could be iden- tified for non-international armed conflicts which would prohibit, according to international law, the confiscation of private property, nor is there a rule of Fiebig case Special Criminal Court at The Hague, ibid. , § 419); Poland, Supreme National ( Tribunal, ( ibid. , § 420); United States, Military Tribunal at Nuremberg, Flick case Greiser case ( ibid. ( ibid. , § 422), Krauch (I. G. Farben Trial) case Krupp case ibid. , § 423) and Von ( , § 421), ( ibid. , § 424). Leeb (The High Command Trial) case 53 Israel, High Court, ( ibid. , § 414). Al-Nawar case 54 Hague Regulations, Article 52 ( ibid. , § 317). 55 See, e.g., the military manuals of Argentina ( ibid. , § 327), Australia ( ibid. , §§ 328–329), Canada ( ibid. , §§ 333–334), France ( ibid. , § 341), Germany ( ibid. , § 342), Italy ( ibid. , § 346), New Zealand ( ibid. ibid. , § 351), Switzerland ( ibid. , § 358), United Kingdom ( ibid. , § 362) and , § 349), Nigeria ( ibid. United States ( , §§ 363–364). 56 See, e.g., the legislation of Argentina ( ibid. , § 368), Bosnia and Herzegovina ( ibid. , § 373), ibid. , § 374), Chile ( ibid. , § 376), China ( Bulgaria ( , § 377), Colombia ( ibid. , § 378), Croatia ibid. ( ibid. , § 379), Estonia ( ibid. , § 382), Italy ( ibid. , §§ 387–388), Lithuania ( ibid. , § 389), Moldova ( ibid. , § 391), Netherlands ( ibid. , § 395), Norway ( ibid. , § 396), Slovenia ( ibid. , § 398), Spain ( ibid. ibid. , § 404); see also the draft legislation of Argentina ( ibid. , , § 399) and Yugoslavia ( § 370). 58 57 First Geneva Convention, Article 34. Fourth Geneva Convention, Article 57. 59 Additional Protocol I, Article 63(4)–(6). 60 See, e.g., the military manuals of Benin (cited in Vol. II, Ch. 16, § 330), Canada ( ibid. , § 334), , § 353), Colombia ( , §§ 336–337), El Salvador ( ibid. , § 340), Italy ( ibid. , § 346), Peru ( ibid. ibid. Philippines ( ibid. , § 354), South Africa ( ibid. , § 357) and Togo ( ibid. , § 359).

243 182 destruction and seizure of property international law which allows such confiscation. It is expected, however, that this question would be regulated in national legislation. Rule 52. Pillage is prohibited. Practice Volume II, Chapter 16, Section D. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The prohibition of pillage is a long-standing rule of customary international law already recognised in the Lieber Code, the Brussels Declaration and the Oxford 61 Pillage is prohibited under all circumstances under the Hague Regu- Manual. 62 lations. Pillage is identified as a war crime in the Report of the Commission on Responsibility set up after the First World War, as well as by the Charter of the International Military Tribunal (Nuremberg) established following the 63 64 Second World War. The Fourth Geneva Convention also prohibits pillage. Under the Statute of the International Criminal Court, “pillaging a town or place, even when taken by assault,” constitutes a war crime in international 65 armed conflicts. 66 Pillage The prohibition of pillage is set forth in numerous military manuals. 67 constitutes an offence under the legislation of a large number of States. This 61 , § 470); Brussels Declaration, Article 18 ( ibid. , § 471) and Lieber Code, Article 44 ( ibid. ibid. Article 39 ( ibid. , § 473). , § 472); Oxford Manual, Article 32 ( 62 ibid. , § 461) and Article 47 ( , § 462). Hague Regulations, Article 28 ( ibid. 63 ibid. Report of the Commission on Responsibility ( , § 475); IMT Charter (Nuremberg), , § 465). Article 6(b) (punishing “plunder”) ( ibid. 64 ibid. , § 466). Fourth Geneva Convention, Article 33, second paragraph ( 65 ICC Statute, Article 8(2)(b)(xvi) ( , § 468). ibid. 66 ibid. ibid. , §§ 488–489), See, e.g., the military manuals of Argentina ( , §§ 486–487), Australia ( ibid. , §§ 490–491), Benin ( Belgium ( , § 492), Burkina Faso ( ibid. , § 493), Cameroon ( ibid. , ibid. §§ 494–495), Canada ( ibid. , §§ 496–497), China ( ibid. , § 498), Colombia ( ibid. , §§ 499–500), Congo ( ibid. ibid. , §§ 502–503), Dominican Republic ( ibid. , § 504), Ecuador , § 501), Croatia ( ibid. ibid. , § 506), France ( ibid. , §§ 507–510), Germany ( ibid. , §§ 511– ( , § 505), El Salvador ( ibid. , §§ 513–514), Israel ( ibid. , §§ 515–516), Italy ( ibid. , §§ 517–518), Kenya 512), Indonesia ( ( ibid. ibid. , §§ 520–521), Madagascar ( ibid. , § 522), Mali ( ibid. , § 523), , § 519), South Korea ( ibid. , § 524), Netherlands ( ibid. , §§ 525–526), New Zealand ( ibid. , § 527), Nigeria Morocco ( ( ibid. , §§ 528–531), Peru ( ibid. , § 532), Philippines ( ibid. , §§ 533–534), Russia ( ibid. , § 535), Senegal ( ibid. ibid. , § 538), Spain ( ibid. , § 539), Sweden ( ibid. , § 540), , §§ 536–537), South Africa ( Switzerland ( , § 541), Togo ( ibid. , § 542), Uganda ( ibid. , §§ 543–544), United Kingdom ( ibid. , ibid. §§ 545–546), United States ( ibid. , §§ 547–552) and Yugoslavia ( ibid. , § 553). 67 ibid. ibid. , § 554), Algeria ( ibid. , § 555), Australia ( See, e.g., the legislation of Albania ( , §§ 557–559), Azerbaijan ( ibid. , §§ 560–561), Bangladesh ( ibid. , § 562), Bosnia and Herzegovina

244 Rule 52 183 prohibition has been enforced in several cases before national courts after the 68 Second World War, as it has by the International Criminal Tribunal for the 69 Former Yugoslavia. The prohibition of pillage has been supported by official 70 statements and other practice. Non-international armed conflicts 71 Pillage is prohibited under Additional Protocol II. Under the Statute of the International Criminal Court, “pillaging a town or place, even when taken by 72 assault,” constitutes a war crime in non-international armed conflicts. Pillage is also included as a war crime in the Statutes of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda and of the Special Court 73 for Sierra Leone. ibid. , § 564), Bulgaria ( ibid. , § 565), Burkina Faso ( ibid. , § 566), Cameroon , § 563), Brazil ( ibid. ( , § 568), Canada ( ibid. , §§ 569–570), Chad ( ibid. , § 571), Chile ( ibid. , § 572), China ( ibid. , ( ibid. , § 576), Democratic Republic of the Congo ( §§ 573–574), Colombia ( , § 577), Congo ibid. ibid. , § 580), Czech Republic ( , § 578), C ibid. , § 579), Croatia ( ibid. ote d’Ivoire ( ibid. , § 581), ibid. ( ˆ , § 582), Egypt ( ibid. , § 583), El Salvador ( Ecuador ( , §§ 584–585), Estonia ( ibid. , § 586), ibid. ibid. ibid. , § 587), France ( ibid. , § 588), Gambia ( ibid. , § 589), Georgia ( ibid. , § 590), Ethiopia ( ibid. , § 591), Ghana ( ibid. , § 592), Guinea ( ibid. , § 593), Hungary ( ibid. Germany ( , § 594), India ( , § 595), Indonesia ( ibid. , §§ 596–597), Iraq ( ibid. , § 598), Ireland ( ibid. , § 599), Israel ( ibid. , ibid. ibid. , §§ 602–603), Jordan ( , § 604), Kazakhstan ( ibid. , § 605), Kenya ( ibid. , §§ 600–601), Italy ( ibid. , § 607), Latvia ( ibid. , § 608), Luxembourg ( ibid. , § 609), Malaysia § 606), South Korea ( ibid. , § 610), Mali ( ibid. , §§ 611–612), Mexico ( ibid. , § 613), Moldova ( ibid. , § 614), Morocco ( ibid. ibid. , § 615), Mozambique ( ibid. , § ( ibid. ibid. , §§ 618– 616), Myanmar ( , § 617), Netherlands ( ibid. , §§ 621–622), Nicaragua ( ibid. , § 623), Nigeria ( ibid. , § 624), Norway 620), New Zealand ( ibid. , §§ 629–630), ibid. , §§ 626–627), Peru ( ibid. , § 628), Philippines ( ibid. ( , § 625), Paraguay ( ibid. ibid. ibid. , § 632), Singapore ( Russia ( , § 633), Slovakia ( ibid. , § 634), Slove- , § 631), Senegal ( nia ( , § 635), Spain ( ibid. , §§ 636–638), Sri Lanka ( ibid. , §§ 639–641), Switzerland ( ibid. , ibid. § 642), Tajikistan ( ibid. , § 643), Togo ( ibid. , § 644), Trinidad and Tobago ( ibid. , § 645), Tunisia ( ibid. , § 648), Ukraine ( ibid. , § 649), United Kingdom ( ibid. , §§ 650–652), , § 647), Uganda ( ibid. , §§ 653–656), Uzbekistan ( , § 657), Venezuela ( ibid. , § 658), Vietnam ibid. ibid. United States ( , § 659), Yemen ( ibid. , §§ 660–661), Yugoslavia ( ibid. , §§ 662–663), Zambia ( ibid. , § 664) ( ibid. , § 665); see also the draft legislation of Argentina ( and Zimbabwe ( , § 556), Burundi ibid. ibid. , § 567) and Trinidad and Tobago ( ibid. , § 646). ( ibid. 68 See, in particular, China, War Crimes Military Tribunal of the Ministry of National Defence at Takashi Sakai case ( ibid. , § 667); France, Permanent Military Tribunal at Clermont- Nanking, Szabados case Ferrand, , § 669); France, Permanent Military Tribunal at Dijon, Holstein ( ibid. ibid. , § 670); France, Permanent Military Tribunal at Metz, ( ( ibid. , § 671); case Bauer case Netherlands, Special Criminal Court at Hertogenbosch and Special Court of Cassation, Esau ( ibid. , § 675); Netherlands, Special Criminal Court at The Hague, Fiebig case ( ibid. , § 676); case Pohl case ibid. , § 677) and Von Leeb (The High ( United States, Military Tribunal at Nuremberg, ( ibid. , § 678). Command Trial) case 69 ́ ́ ˇ ́ ICTY, ibid. , § 740), Delali Jelisi c case , Judgement ( ibid. , § 742), Bla , Judgement ( ski c case c case , ˇ ́ Judgement ( ibid. c and Kordi Cerkez case , Judgement ( ibid. , § 744). , § 743) and 70 See, e.g., the statements of Afghanistan ( , § 680), Bahrain ( ibid. , § 683), China ( ibid. , § 684), ibid. Finland ( , § 686), France ( ibid. , § 687), Germany ( ibid. , §§ 688–689), Kuwait ( ibid. , §§ 691– ibid. 693), Qatar ( ibid. , § 695), Russia ( ibid. , § 697), Slovenia ( ibid. , § 699), Spain ( ibid. , § 700), United Kingdom ( ibid. ibid. , § 704) and Yugoslavia ( ibid. , , §§ 701 and 703), United States ( § 705), the practice of the United Kingdom ( , § 702) and the reported practice of Iran ( ibid. , ibid. § 690). 71 Additional Protocol II, Article 4(2)(g) (adopted by consensus) ( ibid. , § 467). 72 ibid. , § 468). ICC Statute, Article 8(2)(e)(v) ( 73 ICTY Statute, Article 3(e) ( ibid. , § 480); ICTR Statute, Article 4(f) ( ibid. , § 482); Statute of the Special Court for Sierra Leone, Article 3 ( ibid. , § 469).

245 184 destruction and seizure of property The prohibition of pillage is set forth in military manuals which are applica- 74 ble in or have been applied in non-international armed conflicts. Pillage is an 75 offence under the legislation of many States. Military In its judgement in the in 1985, Argentina’s National Court of Appeals applied the prohi- Junta case bition of pillage in the Hague Regulations to acts committed in the context 76 of internal violence. The prohibition of pillage has been supported by offi- cial statements and other practice in the context of non-international armed 77 conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have gen- 78 erally been condemned by States. They have also been condemned by the 79 United Nations and other international organisations. In most cases, they 74 See, e.g., the military manuals of Argentina ( ibid. ibid. , §§ 488–489), Benin , § 487), Australia ( , § 492), Cameroon ( ibid. , § 495), Canada ( ( , §§ 496–497), China ( ibid. , § 498), Colom- ibid. ibid. ibid. ibid. , §§ 502–503), Ecuador ( ibid. , § 505), El Salvador ( ibid. , bia ( , §§ 499–500), Croatia ( , § 510), Germany ( ibid. , §§ 511–512), Italy ( ibid. , §§ 517–518), Kenya ( ibid. , § 506), France ( ibid. , § 522), Netherlands ( ibid. , § 525), New Zealand ( ibid. , § 527), Nigeria § 519), Madagascar ( ibid. ibid. , §§ 528–529 and 531), Peru ( ibid. , § 533), Philippines ( ibid. , §§ 533–534), Russia ( ibid. , ( ibid. § 535), Senegal ( ibid. , § 538), Spain ( ibid. , § 539), Togo ( ibid. , § 542), , § 537), South Africa ( ibid. , §§ 543–544) and Yugoslavia ( , § 553). Uganda ( ibid. 75 ibid. ibid. , § 561), Bosnia and Herze- See, e.g., the legislation of Australia ( , § 559), Azerbaijan ( , § 563), Canada ( ibid. , §§ 569–570), Colombia ( ibid. , § 576), Democratic Republic govina ( ibid. , § 577), Congo ( ibid. , § 578), Croatia ( ibid. , § 580), Ecuador ( ibid. , § 582), El ibid. of the Congo ( ibid. , §§ 584–585), Estonia ( ibid. , § 586), Ethiopia ( Salvador ( , § 587), Gambia ( ibid. , § 589), ibid. Georgia ( , § 590), Germany ( ibid. , § 591), Ghana ( ibid. , § 592), Guinea ( ibid. , § 593), Ireland ibid. , ibid. ibid. , § 605), Kenya ( ( , § 606), Latvia ( ibid. , § 608), Moldova ( ibid. , § 599), Kazakhstan ( ibid. § 614), Netherlands ( ibid. , § 620), New Zealand ( ibid. , §§ 621–622), Nicaragua ( ibid. , § 623), Nigeria ( ibid. , § 624), Norway ( ibid. , § 625), Paraguay ( ibid. , § 627), Russia ( ibid. , § 631), Singa- pore ( ibid. ibid. , § 635), Spain ( ibid. , §§ 637–638), Switzerland ( ibid. , § 642), , § 633), Slovenia ( ibid. , § 643), Trinidad and Tobago ( , § 645), Uganda ( ibid. , § 648), Ukraine ( ibid. , Tajikistan ( ibid. , § 652), Uzbekistan ( ibid. , § 657), Venezuela ( ibid. , § 658), Yemen § 649), United Kingdom ( ibid. , § 661), Yugoslavia ( ibid. , § 663), Zambia ( ibid. , § 664) and Zimbabwe ( ibid. , § 665); see ( ibid. ibid. , § 565), Burkina Faso ( ibid. , § 566), Czech Republic ( ibid. , also the legislation of Bulgaria ( § 581), Hungary ( , § 594), Italy ( ibid. , §§ 602–603), South Korea ( ibid. , § 607), Mozambique ibid. ibid. , ibid. , § 626), Peru ( ibid. , § 628), Slovakia ( ibid. , § 634) and Togo ( ibid. ( , § 616), Paraguay ( § 644), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( , § 556), Burundi ( ibid. , § 567) and Trinidad and Tobago ibid. ibid. , § 646). ( 76 Argentina, National Court of Appeals, Military Junta case ( ibid. , § 666). 77 See, e.g., the statements of France ( ibid. , § 687), Germany ( ibid. , § 688), Russia ( ibid. , § 696) and Rwanda ( ibid. ibid. , § 685) and Yugoslavia ( ibid. , § 705). , § 698) and the practice of Colombia ( 78 See, e.g., the statements of Afghanistan ( , § 680), Bahrain ( ibid. , § 683), China ( ibid. , § 684), ibid. ibid. , § 685), Finland ( ibid. , § 686), France ( ibid. Colombia ( ibid. , §§ 688–689), , § 687), Germany ( Kuwait ( ibid. , §§ 691–693), Nigeria ( ibid. , § 694), Qatar ( ibid. , § 695), Russia ( ibid. , §§ 696– 697), Rwanda ( ibid. , § 698), Slovenia ( ibid. , § 699), Spain ( ibid. , § 700), United Kingdom ( ibid. , §§ 701–703), United States ( ibid. ibid. , § 705). , § 704) and Yugoslavia ( 79 ibid. , § 710), Res. 1019 ( ibid. , § 711) and Res. 1034 See, e.g. UN Security Council, Res. 912 ( ( ibid. , § 712); UN Security Council, Statements by the President ( ibid. , §§ 713–715); UN General Assembly, Res. 50/193 ( , § 716); UN Commission on Human Rights, Res. 1994/59 ( ibid. , ibid. § 717), Res. 1996/71 ( ibid. , § 718) and Res. 1997/57 ( ibid. , § 719); Gulf Cooperation Council, Final Communiqu e of the Ministerial Council ( ibid. , § 736). ́

246 Rule 52 185 80 In another have been denied or recognised as unlawful by the parties involved. instance the authorities expressed their inability to impose discipline on their 81 troops. The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all the parties to an armed conflict ensure that “strict orders are given to prevent all 82 serious violations of international humanitarian law, including . . . looting”. The specific practice collected with respect to pillage of cultural property (see Rule 40) and of property of the wounded and sick (see Rule 111), the dead (see Rule 113) and persons deprived of their liberty (see Rule 122) should also be considered in the assessment of the customary nature of this rule. Definition Pillage (or plunder) is defined in Black’s Law Dictionary as “the forcible tak- ing of private property by an invading or conquering army from the enemy’s 83 subjects”. The Elements of Crimes of the Statute of the International Crimi- nal Court specifies that the appropriation must be done “for private or personal 84 use”. As such, the prohibition of pillage is a specific application of the general principle of law prohibiting theft. This prohibition is to be found in national criminal legislation around the world. Pillage is generally punishable under military law or general penal law. 80 ibid. , § 696) and Rwanda ( ibid. See, e.g., the statements of Russia ( , § 698) and the reported practice of Bosnia and Herzegovina, Republika Srpska ( ibid. , § 757). 81 See, e.g., the reported practice of a State ( ibid. , § 708). 82 th International Conference of the Red Cross and Red Crescent, Plan of Action for the years 27 2000–2003 (adopted by consensus) ( ibid. , § 738). 83 Black’s Law Dictionary , Fifth Edition, West Publishing, St. Paul, Minnesota, 1979, p. 1033. 84 Elements of Crimes for the ICC, Pillage as a war crime (ICC Statute, Article 8(2)(b)(xvi) and (e)(v)).

247 chapter 17 STARVATION AND ACCESS TO HUMANITARIAN RELIEF Rule 53. The use of starvation of the civilian population as a method of warfare is prohibited. Practice Volume II, Chapter 17, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts While in 1863 the Lieber Code still stated that “it is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the 1 enemy”, by 1919 the Report of the Commission on Responsibility set up after the First World War listed “deliberate starvation of civilians” as a violation 2 of the laws and customs of war subject to criminal prosecution. The prohibi- tion of starvation as a method of warfare is codified in Article 54(1) of Addi- 3 tional Protocol I. This provision was generally considered new at the time of the adoption of Additional Protocol I but since then has hardened into a rule of customary international law. Under the Statute of the International Criminal Court, “intentionally using starvation of civilians as a method of warfare” is a 4 war crime in international armed conflicts. 5 The prohibition of starvation is set forth in numerous military manuals. Starvation of civilians as a method of warfare is an offence under the legislation 1 Lieber Code, Article 17 (cited in Vol. II, Ch. 17, § 4). 2 ibid. , § 5). Report of the Commission on Responsibility ( 3 Additional Protocol I, Article 54(1) (adopted by consensus) ( ibid. , § 1). 4 ICC Statute, Article 8(2)(b)(xxv) ( ibid. , § 3). 5 See, e.g., the military manuals of Argentina ( ibid. , § 9), Australia ( ibid. , §§ 10–11), Belgium ( ibid. , § 12), Benin ( ibid. ibid. , § 14), Colombia ( ibid. , § 15), Croatia ( ibid. , § 16), France , § 13), Canada ( , § 20), Indonesia ( ibid. ibid. , § 19), Hungary ( ibid. ( ibid. , § 21), Israel ( ibid. , , §§ 17–18), Germany ( § 22), Kenya ( ibid. , § 23), South Korea ( ibid. , § 24), Madagascar ( ibid. , § 25), Netherlands ( ibid. , § 26), New Zealand ( , § 27), Nigeria ( ibid. , § 28), Russia ( ibid. , § 29), Spain ( ibid. , § 30), ibid. Sweden ( ibid. , § 31), Switzerland ( ibid. , § 32), Togo ( ibid. , § 33), United Kingdom ( ibid. , § 34), United States ( ibid. , § 35) and Yugoslavia ( ibid. , § 36). 186

248 Rule 53 187 6 This rule is also supported by official statements and other of many States. 7 This practice includes that of States not, or not at the time, party to practice. 8 Additional Protocol I. Contrary practice has been generally condemned or has 9 been denied by the accused party. Non-international armed conflicts The prohibition of starvation as a method of warfare is contained in Additional 10 Protocol II. In addition, this rule is contained in other instruments pertaining 11 also to non-international armed conflicts. The prohibition of starvation is included in military manuals which are appli- 12 cable in or have been applied in non-international armed conflicts. Starvation of civilians as a method of warfare constitutes a war crime under the legisla- 13 tion of several States. The prohibition of starvation was applied by the District 14 ́ ˇ si Court of Zadar in the in 1997. Peri c and Others case It is further supported by official statements and reported practice in the context of non-international 6 , §§ 37–38), Azerbaijan ( ibid. , § 39), Belarus ( ibid. , See, e.g., the legislation of Australia ( ibid. , § 41), Canada ( ibid. , § 43), China ( ibid. , § 44), Congo ( ibid. , § 40), Bosnia and Herzegovina ( ibid. ibid. ote d’Ivoire ( , § 46), Croatia ( ibid. , § 47), Ethiopia ( § 45), C , § 48), Georgia ( ibid. , § 49), ibid. ˆ ibid. , § 50), Ireland ( ibid. , § 51), Lithuania ( ibid. , § 52), Mali ( ibid. Germany ( , § 53), Netherlands ( , §§ 54–55), New Zealand ( ibid. , § 56), Norway ( ibid. , § 57), Slovenia ( ibid. , § 58), United ibid. ibid. , § 60) and Yugoslavia ( , §§ 61–62); see also the draft legislation of Burundi Kingdom ( ibid. , § 42) and Trinidad and Tobago ( , § 59). ibid. ibid. ( 7 , § 67), China ( See, e.g., the statements of Belgium ( , § 70), C ibid. ote d’Ivoire ( ibid. , § 74), ibid. ˆ ibid. , § 75), Finland ( ibid. , § 77), Germany ( ibid. , §§ 81–85), Malaysia ( ibid. , § 92), United Cuba ( ibid. , § 99), United States ( ibid. , § 101), USSR ( ibid. , § 106) and Yemen ( ibid. , § 107), Kingdom ( ibid. ibid. , § 69) the practice of the United States ( , § 103) and the reported practice of Belgium ( and Israel ( ibid. , § 88). 8 ibid. ibid. See, e.g., the military manuals of France ( , § 21), Israel ( ibid. , § 22), , § 17), Indonesia ( Kenya ( , § 23), United Kingdom ( ibid. , § 34) and United States ( ibid. , § 35), the legislation ibid. of Azerbaijan ( ibid. , § 39), China ( ibid. , § 44), Ethiopia ( ibid. , § 48) and Netherlands ( ibid. , § 54), the statements of Malaysia ( ibid. ibid. , § 99) and United States ( ibid. , , § 92), United Kingdom ( ibid. , § 88). § 101) and the reported practice of Israel ( 9 ibid. ibid. , § 70), C ote d’Ivoire ( ibid. , § 74), , § 66), China ( See, e.g., the statements of Austria ( ˆ Cuba ( ibid. , § 76), Finland ( ibid. , § 77), Germany ( ibid. , § 81), Iran ( ibid. , ibid. , § 75), Egypt ( ibid. , § 92), Pakistan ( ibid. , § 76), Saudi Arabia ( § 76), Malaysia ( , § 76), Senegal ( ibid. , § 76), ibid. Turkey ( , § 76), United Kingdom ( ibid. , § 99); Yemen ( ibid. , § 107) and three States ( ibid. , ibid. §§ 108–110). 10 ibid. , § 2). Additional Protocol II, Article 14 (adopted by consensus) ( 11 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( , § 6); Agreement on the Application of IHL between the Parties to the ibid. Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 7). 12 See, e.g., the military manuals of Argentina ( ibid. , § 9), Australia ( ibid. , §§ 10–11), Benin ( ibid. , § 13), Canada ( ibid. ibid. , § 15), Croatia ( ibid. , § 16), France ( ibid. , § 18), Ger- , § 14), Colombia ( ibid. ibid. ibid. , § 20), Kenya ( many ( , § 23), South Korea ( ibid. , § 24), Madagascar , § 19), Hungary ( ( , § 25), Netherlands ( ibid. , § 26), New Zealand ( ibid. , § 27), Nigeria ( ibid. , § 28), Russia ibid. ( ibid. , § 29), Spain ( ibid. , § 30), Togo ( ibid. , § 33) and Yugoslavia ( ibid. , § 36). 13 ibid ., § 39), Belarus ( ibid. , § 40), Bosnia and Herzegovina See, e.g., the legislation of Azerbaijan ( ( ibid. , § 41), Croatia ( ibid. , § 47), Ethiopia ( ibid. , § 48), Germany ( ibid ., § 50), Lithuania ( ibid. , § 52), Slovenia ( , § 57) and Yugoslavia ( ibid. , § 61). ibid. 14 ˇ ́ Croatia, District Court of Zadar, si , § 63). c and Others case , Judgement ( ibid. Peri

249 188 starvation and access to humanitarian relief 15 States have generally denounced alleged instances of the use armed conflicts. of starvation as a method of warfare in non-international armed conflicts, for 16 example, in the civil wars in Nigeria and Sudan. The 26th International Conference of the Red Cross and Red Crescent in 1995 strongly condemned “attempts to starve civilian populations in armed conflicts” and stressed “the prohibition on using starvation of civilians as a 17 method of warfare”. This prohibition was also emphasised in the Plan of Action for the years 2000–2003, adopted by the 27th International Conference 18 of the Red Cross and Red Crescent in 1999. Rules 54–56 are a corollary to the prohibition of starvation of civilians as a method of warfare. This means that attacking objects indispensable to the sur- vival of the civilian population (see Rule 54) and denying access of humanitarian aid intended for civilians in need, including deliberately impeding humanitar- ian aid (see Rule 55) or restricting the freedom of movement of humanitar- ian relief personnel (see Rule 56) may constitute violations of the prohibition of starvation. Practice in respect of Rules 54–56 further reinforces this rule’s status as a norm of customary international law. Sieges that cause starvation The prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population. This is stated in the military manuals of France and New 19 Zealand. Israel’s Manual on the Laws of War explains that the prohibition of starvation “clearly implies that the city’s inhabitants must be allowed to leave 20 the city during a siege”. Alternatively, the besieging party must allow the free passage of foodstuffs and other essential supplies, in accordance with Rule 55. 21 States denounced the use of siege warfare in Bosnia and Herzegovina. It was 22 also condemned by international organisations. 15 ibid. , § 67), Colombia ( , § 72), France ( ibid. , § 78), See, e.g., the statements of Belgium ( ibid. ibid. , §§ 79–80), Holy See ( ibid. Germany ( ibid. , § 87), Nigeria ( ibid. , § 94), Philippines , § 86), Iraq ( ( ibid. , § 96), Sweden ( ibid. , § 98), United States ( ibid. , § 102) and USSR ( ibid. , § 105) and the reported practice of Belgium ( ibid. , § 69), Malaysia ( ibid. , § 93) and Rwanda ( ibid. , § 97). 16 See, e.g., the statements of Belgium ( , § 67) and Germany ( ibid. , §§ 79–80). ibid. 17 th 26 International Conference of the Red Cross and Red Crescent, Res. II ( ibid. , § 118). 18 th 27 International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus) ibid. , § 119). ( 19 France, ( ibid. , § 136); New Zealand, LOAC Manual ( ibid. , § 138). Military Manual 20 Israel, Manual on the Laws of War ( ibid. , § 137). 21 See, e.g., the statements of Albania ( , § 142) and Pakistan ( ibid. , § 144). ibid. 22 ibid. , § 145), Res. 764 ( ibid. , § 146) and Res. 859 See, e.g., UN Security Council, Res. 761 ( ( ibid. , § 147); UN Security Council, Statement by the President ( ibid. , § 148); UN General Assembly, Res. 48/88, 49/10 and 49/196 ( , § 149); UN Commission on Human Rights, Res. ibid. 1994/72 ( ibid. , § 150); EU, Statement before the UN General Assembly ( ibid. , § 153); Western European Union, Special Declaration of the Presidential Committee on the situation in the former Yugoslavia ( ibid. , § 154).

250 Rule 54 189 Blockades and embargoes that cause starvation Likewise, the prohibition of starvation as a method of warfare does not prohibit the imposition of a naval blockade as long as the purpose is to achieve a military objective and not to starve a civilian population. This principle is set forth in the San Remo Manual on Naval Warfare and in several military manuals which further specify that if the civilian population is inadequately provided for, the blockading party must provide for free passage of humanitarian relief 23 supplies. Blockades and embargoes of cities and regions have been condemned by the United Nations and other international organisations, for example, with 24 respect to the conflicts in Afghanistan and the territories occupied by Israel. Embargoes imposed by the United Nations itself must also comply with this rule. Rule 54. Attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population are prohibited. Practice Volume II, Chapter 17, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule is a corollary to the prohibition of starvation (see Rule 53). International armed conflicts In principle, objects indispensable to the survival of the civilian population are civilian objects and may not be attacked as such (see Rule 7). A specific pro- hibition on attacking, destroying, removing or rendering useless objects indis- pensable to the survival of the civilian population is set forth in Article 54(2) 25 According to the Commentary on the Additional of Additional Protocol I. Protocols, “this provision develops the principle formulated in paragraph 1 [of Article 54] of prohibiting starvation of the civilian population; it describes the 26 most usual ways in which this may be applied”. Article 54(2) prohibits attacks 23 San Remo Manual, paras. 102–103 ( , § 160); military manuals of Australia ( ibid. , § 162), ibid. ibid. Canada ( ibid. , § 165) and United States ( ibid. , § 169). , § 163), France ( 24 See, e.g., UN Security Council, Statements by the President ( ibid. , §§ 174–175); UN Commission on Human Rights, Res. 1994/74 ( , § 176) and Res. 1995/76 ( ibid. , § 176); OIC, Conference ibid. of Ministers of Foreign Affairs, Res. 1/7-P (IS) ( ibid. , § 183). 25 Additional Protocol I, Article 54(2) (adopted by consensus) ( ibid. , § 188). 26 Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Additional Protocols , ICRC, Geneva, 1987, § 2098.

251 190 starvation and access to humanitarian relief against objects “for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for 27 any other motive”. Upon ratification of Additional Protocol I, France and the United Kingdom stated that this provision had no application to attacks that were carried out for a specific purpose other than denying sustenance to the 28 civilian population. Under the Statute of the International Criminal Court, “intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival” is a war crime in international 29 armed conflicts. Numerous military manuals state that it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian 30 population. These include manuals of States not, or not at the time, party to 31 Additional Protocol I. The Annotated Supplement to the US Naval Handbook 32 provides that this prohibition is part of customary international law. Several military manuals specify that in order to be illegal, the intent of the attack has 33 to be to prevent the civilian population from being supplied. Most military manuals, however, do not indicate such a requirement and prohibit attacks 34 against objects indispensable to the survival of the civilian population as such. This is also the case with much of the national legislation which makes it an 35 offence to violate this rule. 27 Additional Protocol I, Article 54(2) (adopted by consensus) (cited in Vol. II, Ch. 17, § 188). 28 , France, Reservations and declarations made upon ratification of Additional Protocol I ( ibid. § 189); United Kingdom, Reservations and declarations made upon ratification of Additional ibid. , § 190). Protocol I ( 29 ICC Statute, Article 8(2)(b)(xxiv) ( ibid. , § 192). 30 ibid. See, e.g., the military manuals of Australia ( ibid. , § 201), Benin , §§ 199–200), Belgium ( ibid. , § 202), Canada ( , § 203), Colombia ( ibid. , § 204), Ecuador ( ibid. , § 205), France ( ibid. , ibid. ( , §§ 209–210), Indonesia ( ibid. , § 212), Israel ( ibid. , § 213), Kenya ibid. §§ 206–208), Germany ( ibid. , § 214), Madagascar ( ibid. , § 215), Netherlands ( ( , §§ 216–217), New Zealand ( ibid. , ibid. § 218), Nigeria ( , § 219), South Africa ( ibid. , § 220), Spain ( ibid. , § 221), Sweden ( ibid. , § 222), ibid. ibid. , § 223), Togo ( ibid. , § 224), United Kingdom ( ibid. , § 225), United States ( ibid. , Switzerland ( §§ 226–227) and Yugoslavia ( ibid. , § 228). 31 See the military manuals of France ( , § 206), Indonesia ( ibid. , § 212), Israel ( ibid. , § 213), ibid. ibid. , § 214), United Kingdom ( , § 225) and United States ( ibid. , §§ 226–227). Kenya ( ibid. 32 United States, ( ibid. , § 227). Annotated Supplement to the Naval Handbook 33 ibid. , § 200), Ecuador ( ibid. , § 205), France ( ibid. , See, e.g., the military manuals of Australia ( § 208), Germany ( ibid. ibid. , § 218), Spain (“with the intent to starve the , § 210), New Zealand ( ibid. , §§ 226–227) and ibid. , § 222), United States ( ibid. civilian population”) ( , § 221), Sweden ( ibid. Yugoslavia ( , § 228). 34 See, e.g., the military manuals of Belgium ( ibid. , § 201), Benin ( ibid. , § 202), Canada (“whatever the motive”) ( ibid. , § 203), Colombia ( ibid. , § 204), France ( ibid. , §§ 206–207), Indonesia ( ibid. , § 212), Israel ( ibid. ibid. , § 214), Madagascar ( ibid. , § 215), Netherlands (“whatever , § 213), Kenya ( ibid. ibid. ibid. , § 219), South Africa ( the motive”) ( , § 220), Switzerland , §§ 216–217), Nigeria ( ( , § 223), Togo ( ibid. , § 224) and United Kingdom ( ibid. , § 225). ibid. 35 See, e.g., the legislation of Colombia ( ibid. , § 233), Czech Republic ( ibid. , § 235), Estonia ( , § 237), Netherlands ( ibid. , § 245), Peru ( ibid. , § 249), Slovakia ( ibid. , § 250) and Spain ibid. ( ibid. , § 251); see also the draft legislation of Argentina ( ibid. , § 229), El Salvador ( ibid. , § 236) and Nicaragua ( ibid. , § 247).

252 Rule 54 191 Non-international armed conflicts In principle, objects indispensable to the survival of the civilian population are civilian objects and may not be attacked as such (see Rule 7). The prohibition on attacking objects indispensable to the survival of the civilian population is set forth in Additional Protocol II and is defined therein as a corollary to the 36 prohibition of starvation. As stated in the Commentary on the Additional Pro- tocols, this provision “develops the principle prohibiting starvation from being used against civilians by pointing out the most usual ways in which starvation 37 is brought about”. In addition, this rule is contained in other instruments 38 pertaining also to non-international armed conflicts. The prohibition is set forth in military manuals which are applicable in or 39 have been applied in non-international armed conflicts. Attacking objects indispensable to the survival of the civilian population is an offence under the 40 legislation of several States. This rule is also referred to in official statements 41 and other practice relating to non-international armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have gener- ally been condemned, in particular by the United Nations and other interna- tional organisations, for example, with respect to the conflicts in Bosnia and 42 Herzegovina and the Democratic Republic of the Congo. The 26th Interna- tional Conference of the Red Cross and Red Crescent in 1995 underlined in general terms “the prohibition on attacking, destroying, removing or rendering 43 useless any objects indispensable to the survival of the civilian population”. 36 ibid. , § 191). Additional Protocol II, Article 14 (adopted by consensus) ( 37 Commentary on the Additional Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), , ICRC, Geneva, 1987, § 4800. Protocols 38 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 (cited in Vol. II, Ch. 17, § 194); Agreement on the Application of IHL between the ibid. , § 195). Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( 39 See, e.g., the military manuals of Argentina ( , § 198), Australia ( ibid. , §§ 199–200), Benin ibid. ( , § 202), Canada ( ibid. , § 203), Colombia ( ibid. ibid. ibid. , § 205), France ( ibid. , , § 204), Ecuador ( § 208), Germany ( ibid. , §§ 209–210), Kenya ( ibid. , § 214), Madagascar ( ibid. , § 215), Netherlands ( ibid. ibid. , § 218), Nigeria ( ibid. , § 219), South Africa ( ibid. , § 220), Spain , § 216), New Zealand ( ibid. ibid. , § 224) and Yugoslavia ( ibid. , § 228). ( , § 221), Togo ( 40 ibid. , § 237), Germany ( ibid. See, e.g., the legislation of Colombia ( ibid. , , § 233), Estonia ( § 239), Ireland ( , § 241), Norway ( ibid. , § 248) and Spain ( ibid. , § 251); see also the legisla- ibid. tion of Czech Republic ( ibid. , § 235), Peru ( ibid. , § 249) and Slovakia ( ibid. , § 250), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( , § 229), El Salvador ( ibid. , § 236) and Nicaragua ( ibid. , § 247). ibid. 41 See, e.g., the statement of Colombia ( ibid. , § 259) and Philippines ( ibid. , § 267) and the reported practice of Malaysia ( ibid. , § 266) and Rwanda ( ibid. , § 268). 42 ibid. , §§ 274–275); UN High See, e.g., UN Security Council, Statements by the President ( Commissioner for Human Rights and UN Under-Secretary-General for Humanitarian Affairs, Press release on the situation in the Democratic Republic of the Congo ( ibid. , § 281); EU, Press Statement by the Presidency on the situation in the Democratic Republic of the Congo ( ibid. , § 283). 43 th 26 International Conference of the Red Cross and Red Crescent, Res. II ( ibid. , § 286).

253 192 starvation and access to humanitarian relief The prohibition was also stressed in the Plan of Action for the years 2000– 2003, adopted by the 27th International Conference of the Red Cross and Red 44 Crescent in 1999. The ICRC has called on parties to both international and 45 non-international armed conflicts to respect this rule. Exceptions There are two exceptions to the prohibition on attacking objects indispens- able to the survival of the civilian population. The first exception is based on the consideration that these objects can be attacked if they qualify as mili- tary objectives. Additional Protocol I provides that this may be the case if the objects are used as sustenance solely for combatants or otherwise in direct sup- 46 port of military action. This exception is set forth in several military manuals, 47 some legislation and official statements. This practice recognises, however, that when such objects are not used as sustenance solely for combatants but nevertheless in direct support of military action, the prohibition of starvation prohibits the attack of such objects if the attack may be expected to cause star- vation among the civilian population. This practice includes that of States not 48 party to Additional Protocol I. It is doubtful, however, whether this exception also applies to non-international armed conflicts, because Article 14 of Addi- tional Protocol II does not provide for it and there is no practice supporting it. The second exception consists of the so-called “scorched earth policy” applied in defence of national territory against invasion. Additional Protocol I allows for this exception “in recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion . . . where 49 required by imperative military necessity”. This exception is recognised in 50 several military manuals and official statements. This practice includes that th 44 27 International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus) , § 287). ibid. ( 45 See, e.g., ICRC, Conflict in Southern Africa: ICRC appeal ( , § 290), Memorandum on the ibid. Applicability of International Humanitarian Law ( ibid. , § 291), Appeal in behalf of civilians in ibid. , § 293), Press Release No. 1705 ( Yugoslavia ( , § 296), Press Release No. 1712 ( ibid. , ibid. § 297), Press Release No. 1726 ( , § 297), Memorandum on Respect for International Humani- ibid. ibid. , § 298) and Memorandum on Compliance with International Human- tarian Law in Angola ( eration Turquoise ( ibid. , § 299). itarian Law by the Forces Participating in Op ́ 46 Additional Protocol I, Article 54(3) (adopted by consensus) ( ibid. , § 308). 47 See, e.g., the military manuals of Australia ( , § 313), Belgium ( ibid. , § 314), Canada ( ibid. , ibid. ibid. ibid. , § 317), New Zealand ( ibid. , § 318), Spain ( ibid. , § 315), Israel ( , § 316), Netherlands ( ibid. , § 320) and Yugoslavia ( ibid. § 319), Sweden ( ibid. , , § 321) and the legislation of Spain ( § 323); see also the draft legislation of Argentina ( ibid. , § 322) and the statements of Colombia ( ibid. , § 325) and United States ( ibid. , § 327). 48 See Israel, Manual on the Laws of War ( ibid. , § 316); United States, Address by the Deputy Legal Adviser of the Department of State ( ibid. , § 327). 49 Additional Protocol I, Article 54(5) (adopted by consensus) ( ibid. , § 333). 50 See, e.g., the military manuals of Australia ( ibid. , §§ 336–337), Canada ( ibid. , § 338), Germany ( ibid. , § 340), Israel ( ibid. , § 341), Netherlands ( ibid. , § 342), New Zealand ( ibid. , § 343), Spain , § 347); the statements of Sweden ( ( , § 344), Sweden ( ibid. , § 345) and Yugoslavia ( ibid. ibid. ibid. , § 350) and United States ( ibid. , § 351).

254 Rule 55 193 51 of States not party to Additional Protocol I. It is doubtful, however, whether the exception of scorched earth policy applies to non-international armed con- flicts because Article 14 of Additional Protocol II does not contain it. Colom- bia’s Basic Military Manual states that “in all armed conflicts” it is prohibited 52 to order a scorched earth policy as a method of combat. Belligerent reprisals against objects indispensable to the survival of the civil- ian population are discussed in Chapter 41. Definition of objects indispensable to the survival of the civilian population Additional Protocols I and II provide the following examples of objects indis- pensable to the survival of the civilian population: foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations 53 This list of examples is not exhaustive as and supplies, and irrigation works. indicated by the words “such as” in the relevant provisions. During the nego- tiation of the Elements of Crimes for the International Criminal Court, it was recognised that the ordinary meaning of the word “starvation” covered not only the more restrictive meaning of starving as killing by deprivation of water and food, but also the more general meaning of deprivation or insufficient supply of some essential commodity, of something necessary to survival. As a result, other examples that were mentioned during those negotiations included indis- 54 pensable non-food items such as medicines and, in some cases, blankets. It is important to point out in this respect that both Additional Protocols I and II consider food and medical supplies as essential to the survival of the civilian population, while Additional Protocol I also mentions clothing, bedding and 55 means of shelter. Rule 55. The parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control. Practice Volume II, Chapter 17, Section C. 51 ibid. , § 341) and the statement of the United States ( ibid. , See, e.g., the military manual of Israel ( § 351). 52 Colombia, Basic Military Manual ( ibid. , § 339). 53 Additional Protocol I, Article 54(2) (adopted by consensus) ( , § 188); Additional Protocol II, ibid. Article 14 (adopted by consensus) ( ibid. , § 191). 54 Knut D ormann, “Preparatory Commission for the International Criminal Court: The Elements ̈ of War Crimes – Part II: Other Serious Violations of the Laws and Customs Applicable in International and Non-International Armed Conflicts”, International Review of the Red Cross , Vol. 83, 2001, pp. 475–476. 55 Additional Protocol I, Article 69(1); Additional Protocol II, Article 18(2).

255 194 starvation and access to humanitarian relief Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The Fourth Geneva Convention requires States to “allow the free passage of all consignments of medical and hospital stores” intended only for civilians and “the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity 56 cases”. Additional Protocol I broadens this obligation to cover “rapid and 57 unimpeded passage of all relief consignments, equipment and personnel”. This broadening is generally accepted, including by States not, or not at the 58 time, party to Additional Protocol I. Many military manuals contain the obligation to allow and facilitate access of 59 humanitarian relief to civilians in need. The obligation to allow and facilitate access of humanitarian relief to civilians in need is also supported by official 60 statements and reported practice. The United Nations, in particular, has on many occasions called for respect for the rule. The UN Security Council, for example, has called for unimpeded access for humanitarian relief efforts in Iraq 61 and in all areas affected by the conflict between Armenia and Azerbaijan. Non-international armed conflicts The requirement to allow and facilitate access for humanitarian relief to civil- ians in need was included in the draft of Additional Protocol II adopted by Committee II of the Diplomatic Conference leading to the adoption of the Additional Protocols but was deleted at the last moment as part of a package 62 aimed at the adoption of a simplified text. As a result, Additional Protocol II requires that relief actions for the civilian population in need be organised but does not contain a specific provision on access of humanitarian relief even 56 Fourth Geneva Convention, Article 23 (cited in Vol. II, Ch. 17, § 361). 57 ibid. Additional Protocol I, Article 70(2) (adopted by consensus) ( , § 362). 58 See, e.g., the military manual of Kenya ( ibid. , § 388) and the statement of the United States ( ibid. , § 435). 59 See, e.g., the military manuals of Argentina (“allow”) ( ibid. , §§ 380–381), Australia (“allow”) ( ibid. ibid. , § 384), Colombia , § 383), Canada (“allow” and “facilitate” in case of siege warfare) ( ibid. ibid. , § 386), Italy (“accept”) ( ibid. , § 387), Kenya (“allow”) ( , § 385), Germany (“permit”) ( ibid. , § 388), Netherlands (“have to give” and “facilitate”) ( ibid. (“allow and facilitate”) ( , § 389), New Zealand (“allow”) ( ibid. , § 390), Russia (“give all facilities”) ( ibid. , § 391), Switzerland (“all necessary facilities”) ( ibid. , § 393), United Kingdom (“allow”, “all necessary facilities” and “guarantee”) ( ibid. , §§ 394–395) and United States (“agree” and “facilitate”) ( ibid. , § 396). 60 ibid. , § 430) and United States ( ibid. , § 435) and the reported See, e.g., the statements of Norway ( practice of Kuwait ( ibid. , § 426). 61 UN Security Council, Res. 688 ( ibid. , § 440), Res. 706 ( ibid. , § 441), Res. 822 ( ibid. , § 445), Res. 853 ( ibid. , § 448) and Res. 874 ( ibid. , § 449). 62 Draft Additional Protocol II, Article 33 ( ibid. , § 363).

256 Rule 55 195 63 conditio sine qua non for relief actions. though such access is clearly a In addition, this rule is contained in other instruments pertaining also to 64 non-international armed conflicts. The obligation to allow the free passage of relief supplies is also set forth in 65 military manuals which are applicable in non-international armed conflicts. The obligation to allow the free passage of relief supplies is also supported by many official statements and other practice relating to non-international armed 66 conflicts. It is also relevant that under the Statute of the International Criminal Court, extermination, defined as including “the intentional infliction of conditions of life, , the deprivation of access to food and medicine, calculated to inter alia bring about the destruction of part of a population”, constitutes a crime against humanity when committed as part of a widespread or systematic attack directed 67 against any civilian population, with knowledge of the attack. The legislation 68 of numerous States provides for the crime of extermination. Contrary practice has generally been condemned with respect to both inter- national and non-international armed conflicts. For example, the Mengistu regime in Ethiopia reportedly used the denial of access to food as a weapon against armed opposition groups, including by banning the movement of relief supplies after a famine emerged in late 1989. It is reported, however, that “after an international outcry against his policy, Mengistu reversed his deci- 69 sion”. The United Nations in particular has called for respect for this rule. The UN Security Council, for example, has called on the parties to numerous conflicts, such as those in Afghanistan, Angola, between Armenia and Azer- baijan, Bosnia and Herzegovina, Burundi, Democratic Republic of the Congo, Georgia, Kosovo, Liberia, Somalia and Yemen, to provide unimpeded access 70 for humanitarian assistance. In a resolution adopted in 1999 on children in 63 Additional Protocol II, Article 18(2) (adopted by consensus) ( ibid. , § 680). 64 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 9 ( , § 368); Agreement on the Application of IHL between the Parties to the ibid. , § 369); Bahir Dar Agreement, para. 2 ( Conflict in Bosnia and Herzegovina, para. 2.6 ( , ibid. ibid. ibid. , § 373); Guiding § 370); Agreement on a Cease-fire in the Republic of Yemen, para. 3 ( ibid. , § 375); UN Secretary-General’s Bulletin, Principles on Internal Displacement, Principle 25 ( ibid. Section 9.9 ( , § 376); Agreement on the Protection and Provision of Humanitarian Assistance ibid. in Sudan, para. 1( , § 377). 65 ibid. , § 385), Germany ( ibid. See, e.g., the military manuals of Colombia ( ibid. , , § 386), Italy ( § 387) and Kenya ( ibid. , § 388). 66 See, e.g., the statements of Germany ( ibid. , § 423), Nigeria ( ibid. , § 429), United States ( ibid. , § 434) and Yugoslavia ( ibid. ibid. , § 425), Philippines ( ibid. , , § 437), the practice of Jordan ( ibid. ibid. , § 433). §§ 431–432) and Yugoslavia ( , § 438) and the reported practice of Rwanda ( 67 ICC Statute, Article 7 ( ibid. , § 365). 68 ibid. , § 397), Azerbaijan ( ibid. See, e.g., the legislation of Australia ( ibid. , § 400), , § 398), Belgium ( Cambodia ( ibid. , § 402), Canada ( ibid. , § 403), Congo ( ibid. , § 404), Germany ( ibid. , § 407), Israel ( ibid ., § 409), Mali ( ibid. , § 410), New Zealand ( ibid. , § 411), United Kingdom ( ibid. , § 415), United States ( ibid ibid. , § 418); see also the draft legislation of ., §§ 416–417) and Vietnam ( ibid. , § 414). ibid. Burundi ( , § 401) and Trinidad and Tobago ( 69 Ethiopia: A Country Study ( ibid. , § 422). See Thomas P. Ofcansky and LaVerle Berry (eds.), 70 UN Security Council, Res. 752 ( , § 442), Res. 757 ( ibid. , § 443), Res. 794 ( ibid. , § 444), ibid. Res. 822 ( , § 448), , § 445), Res. 824 ( ibid. , § 446), Res. 851 ( ibid. , § 447), Res. 853 ( ibid. ibid.

257 196 starvation and access to humanitarian relief armed conflicts, the UN Security Council called on all parties to armed con- flicts “to ensure the full, safe and unhindered access of humanitarian personnel and the delivery of humanitarian assistance to all children affected by armed 71 conflicts”. In another resolution adopted in 1999 on protection of civilians in armed conflicts, the UN Security Council expressed its concern at “the denial of safe and unimpeded access to people in need” and underlined “the importance of safe and unhindered access of humanitarian personnel to civilians in armed 72 73 conflicts”. These statements were repeated in resolutions adopted in 2000. The 26th International Conference of the Red Cross and Red Crescent in 1995 emphasised “the importance for humanitarian organisations to have unim- peded access in times of armed conflict to civilian populations in need, in 74 accordance with the applicable rules of international humanitarian law”. The Plan of Action for the years 2000–2003, adopted by the 27th International Con- ference of the Red Cross and Red Crescent in 1999, requires that all the parties to an armed conflict ensure that “rapid and unimpeded access to the civil- ian population is given to impartial humanitarian organizations in accordance with international humanitarian law in order that they can provide assistance 75 and protection to the population”. The ICRC has called on parties to both 76 international and non-international armed conflicts to respect this rule. Consent Both Additional Protocols I and II require the consent of the parties con- 77 cerned for relief actions to take place. Most of the practice collected does not mention this requirement. It is nonetheless self-evident that a humanitarian ibid. Res. 874 ( ibid. , § 450), Res. 908 ( ibid. , § 451), Res. 931 ( ibid. , § 452), Res. , § 449), Res. 876 ( 998 ( , § 453), Res. 1004 ( ibid. , § 454), Res. 1019 ( ibid. , § 456), Res. 1059 and 1071 ( ibid. , ibid. ibid. ibid. ibid. , § 460), Res. 1199 ( § 457), Res. 1083 ( , § 461), Res. 1213 ( ibid. , , § 459), Res. 1160 ( § 462), Res. 1239 ( , § 463), Res. 1291 ( ibid. , § 468), Res. 1333 ( ibid. , § 471) and Statements ibid. by the President ( ibid. , §§ 472–479 and 483). 71 UN Security Council, Res. 1261 ( ibid. , § 464). 72 UN Security Council, Res. 1265 ( ibid. , § 466). 73 ibid. ibid. , § 470). UN Security Council, Res. 1296 ( , § 469) and Res. 1314 ( 74 th International Conference of the Red Cross and Red Crescent, Res. II ( ibid. , § 533). 26 75 th 27 International Conference of the Red Cross and Red Crescent, Res. I (adopted by consensus) ibid. ( , § 536). 76 ibid. , § 540), Press Release See, e.g., ICRC, Conflict in Southern Africa: ICRC appeal ( No. 1488 ( ., § 541), Annual Report 1986 ( ibid. , § 542), Press Release, ICRC denies ibid allegations ( ibid. , § 545), Press Release, Tajikistan: ICRC urges respect for humanitarian rules ( ibid. ibid. , § 547), Press Release, ICRC Appeal , § 546), Press Release No. 1744 ( ibid. for respect for international humanitarian law in central Bosnia ( , § 548), Commu- ibid. , § 549), Communication to the Press No. 93/22 nication to the Press No. 93/17 ( ( , § 550), Memorandum on Respect for International Humanitarian Law in Angola ibid. ( ibid. , § 553), Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Op , § 554), Communication to the Press eration Turquoise ( ibid. ́ ibid. , § 556) and Communication to the Press No. 01/47 ( ibid. , § 557). No. 97/08 ( 77 Additional Protocol I, Article 70(1) (adopted by consensus) ( ibid. , § 679); Additional Protocol II, Article 18(2) (adopted by consensus) ( ibid. , § 680).

258 Rule 55 197 organisation cannot operate without the consent of the party concerned. How- ever, such consent must not be refused on arbitrary grounds. If it is estab- lished that a civilian population is threatened with starvation and a humanitar- ian organisation which provides relief on an impartial and non-discriminatory 78 basis is able to remedy the situation, a party is obliged to give consent. The 26th International Conference of the Red Cross and Red Crescent in 1995 stressed the obligation of all parties to a conflict “to accept, under the con- ditions prescribed by international humanitarian law, impartial humanitarian relief operations for the civilian population when it lacks supplies essential 79 to its survival”. While consent may not be withheld for arbitrary reasons, practice recognises that the party concerned may exercise control over the 80 relief action. In addition, humanitarian relief personnel must respect domes- tic law on access to territory and must respect the security requirements in 81 force. Practice further indicates that a party that imposes a siege, blockade or embargo which has the effect of starving the civilian population has an obliga- tion to provide access for humanitarian aid for the civilian population in need (see commentary to Rule 53). With respect to occupied territories, the Fourth Geneva Convention imposes an obligation on the occupying power to ensure food and medical supplies for 82 the population. It would make sense, although practice does not yet clarify this, to require all parties to a conflict to ensure their populations have access to the basic necessities, and if sufficient supplies are unavailable, to appeal for international assistance and not wait until such assistance is offered. Impediment of humanitarian relief Practice indicates that each party to the conflict must refrain from deliber- ately impeding the delivery of relief supplies to civilians in need in areas under its control. Under the Statute of the International Criminal Court, “wilfully impeding relief supplies” as part of the use of starvation of civilians as a method 83 of warfare is a war crime in international armed conflicts. Such impediment 78 See Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds.), Commentary on the Addi- tional Protocols ( ibid. , § 539); see also § 2805 of the Commentary . 79 th International Conference of the Red Cross and Red Crescent, Res. II (cited in Vol. II, 26 Ch. 17, § 533). 80 See, e.g., Fourth Geneva Convention, Article 23 ( ibid ., § 361); Additional Protocol I, Article 70(3) (adopted by consensus) ( ibid ., § 362); the military manuals of Argentina ( ibid ., § 380), Australia ( ibid ., § 383), Canada ( ibid ., § 384), Germany ( ibid ., § 386), Kenya ( ibid ., § 388), Netherlands ( ., § 389), New Zealand ( ibid ., § 390), United Kingdom ( ibid ., § 394) and United States ( ibid ., ibid § 396). 81 Additional Protocol I, Article 71(4) (adopted by consensus) ( ibid. , § 725). 82 Fourth Geneva Convention, Article 55. 83 ICC Statute, Article 8(2)(b)(xxv) (cited in Vol. II, Ch. 17, § 564).

259 198 starvation and access to humanitarian relief 84 some of which is also an offence under the legislation of numerous States, 85 applies to both international and non-international armed conflicts. The impediment of relief actions in Bosnia and Herzegovina was widely 86 condemned. Numerous resolutions of the UN Security Council, UN Gen- eral Assembly and UN Commission on Human Rights condemn such imped- 87 iment. Some of these resolutions are explicitly addressed to governmental armed forces, while others are explicitly addressed to armed opposition groups. While some resolutions do not qualify the prohibition on impeding human- itarian relief, others only prohibit the “deliberate” or “wilful” impediment. Both treaty law and practice indicate that the parties to the conflict can take a number of measures to control the content and delivery of humanitarian aid but cannot “deliberately” impede its delivery as such. Such measures of con- trol may include the search of relief consignments and their delivery under 88 supervision. Access for humanitarian relief via third States Additional Protocol I requires unimpeded passage of humanitarian relief, not 89 only by the parties to the conflict but by each State party to the Protocol. Such a provision was also included in the draft of Additional Protocol II by Commit- tee II at the Diplomatic Conference leading to the adoption of the Additional Protocols, but it was deleted at the last moment as part of a package aimed 90 at the adoption of a simplified text. In a resolution adopted in 2000 on pro- tection of civilians in armed conflicts, the UN Security Council called upon “all parties concerned, including neighbouring states, to cooperate fully” in 91 providing access for humanitarian personnel. Earlier, in 1994, the Security 84 ibid. , § 569), Canada ( ibid. , § 572), Colombia ( ibid. , § 573), See, e.g., the legislation of Australia ( ibid. Congo ( ibid. , § 576), Germany ( ibid. , § 577), Ireland ( ibid. , § 578), Mali , § 574), Georgia ( ibid. , § 579), Netherlands ( , § 580), New Zealand ( ibid. , § 581), Norway ( ibid. , § 583), ibid. ( , § 584) and United Kingdom ( ibid. , § 586); see also the draft legislation of ibid. Philippines ( ibid. , § 571), El Salvador ( ibid. , § 575), Nicaragua ( Burundi ( , § 582) and Trinidad and Tobago ibid. ( , § 585). ibid. 85 See, e.g., the legislation of Colombia ( , § 573) and Germany ( ibid. , § 577); see also the draft ibid. legislation of El Salvador ( , § 575) and Nicaragua ( ibid. , § 582). ibid. 86 See the statements of China ( ibid. , § 589), Egypt ( ibid. , § 590), Iran ( ibid. , § 590), Pakistan ( ibid. ibid. , § 590), Senegal ( ibid. , § 590), Turkey ( ibid. , § 590) and United , § 590), Saudi Arabia ( ibid. a-vis Sudan and Afghanistan Kingdom ( , § 593); see also the statements of Germany vis- ` ( ibid. , §§ 591–592). 87 ibid. , § 594), Res. 761 ( ibid. , § 595), Res. 770 ( ibid. , See, e.g., UN Security Council, Res. 758 ( § 596), Res. 771 ( ibid. ibid. , § 598), Res. 794 ( ibid. , § 599), Res. 836 ( ibid. , § 600), , § 597), Res. 787 ( ibid. , § 601), Res. 998 ( ibid. , § 602), Res. 1132 ( ibid. , § 603) and Res. 1193 Res. 945 and 952 ( ( ibid. , § 604); UN General Assembly, Res. 46/242 ( ibid. , § 622), Res. 49/196 and 50/193 ( ibid. , § 623), Res. 52/140 ( ibid. ibid. , § 625); UN Commission on Human , § 624) and Res. 52/145 ( ibid. ibid. ibid. , § 627), Res. 1994/75 ( Rights, Res. 1983/29 ( , § 628), Res. , § 626), Res. 1994/72 ( 1995/77 ( , § 629), Res. 1995/89 ( ibid. , § 630), Res. 1996/73 ( ibid. , § 631) and Res. 1998/67 ibid. ( ibid. , § 632). 88 ibid. , § 362). See Additional Protocol I, Article 70(3) (adopted by consensus) ( 89 Additional Protocol I, Article 70(2) (adopted by consensus) ( ibid. , § 656). 90 Draft Additional Protocol II, Article 33(2) ( ibid. , § 657). 91 UN Security Council, Res. 1296 ( ibid. , § 666).

260 Rule 55 199 facilitate transfer Council had called upon “States bordering Rwanda...to of goods and supplies to meet the needs of the displaced persons within 92 Rwanda”. The Guiding Principles on Humanitarian Assistance adopted by the UN General Assembly in 1991 emphasise that “States in proximity to emergencies are urged to participate closely with the affected countries in inter- national efforts, with a view to facilitating, to the extent possible, the transit 93 of humanitarian assistance”. Right of the civilian population in need to receive humanitarian relief There is practice which recognises that a civilian population in need is enti- tled to receive humanitarian relief essential to its survival, in accordance with international humanitarian law. The Fourth Geneva Convention recognises the right of protected persons to make application to the protecting powers, the ICRC or a National Red Cross or Red Crescent Society, as well as to any organ- 94 isation that might assist them. The Additional Protocols implicitly recognise the entitlement of a civilian population in need to receive humanitarian relief as they require that relief actions “shall be undertaken” whenever a population 95 is in need. Other State practice explicitly recognises this right. Nicaragua’s Military Manual, for example, states that “the civilian population has the right to receive 96 the relief they need”. This right is also recognised in practice pertaining to 97 non-international armed conflicts. The UN Security Council, UN General Assembly and UN Commission on Human Rights have on several occasions underlined the obligation to grant 98 civilians access to relief supplies. In a report on emergency assistance to Sudan in 1996, the UN Secretary-General stated that: Any attempt to diminish the capacity of the international community to respond to conditions of suffering and hardship among the civilian population in the Sudan can only give rise to the most adamant expressions of concern as a violation of recog- nized humanitarian principles, most importantly, the right of civilian populations 99 to receive humanitarian assistance in times of war. The 26th International Conference of the Red Cross and Red Crescent in 1995 reasserted “the right of a civilian population in need to benefit from impar- tial humanitarian relief actions in accordance with international humanitarian 92 UN Security Council, Statement by the President ( ibid. , § 667). 93 UN General Assembly, Res. 46/182 ( , § 668). ibid. 94 ibid. , § 678). Fourth Geneva Convention, Article 30, first paragraph ( 95 ibid. , § 679); Additional Protocol II, Additional Protocol I, Article 70(1) (adopted by consensus) ( Article 18(2) (adopted by consensus) ( ibid. , § 680). 96 Nicaragua, Military Manual ( ibid. , § 688). 97 ibid. , § 696). See, e.g., the practice of Colombia ( 98 See, e.g., UN Security Council, Res. 824 ( ibid. , § 701); UN General Assembly, Res. 55/2 ( ibid. , § 704); UN Commission on Human Rights, Res. 1995/77 ( ibid. , § 705). 99 UN Secretary-General, Report on emergency assistance to Sudan ( ibid. , § 706); see also Report on protection for humanitarian assistance to refugees and others in conflict situations ( ibid. , § 707) and Reports on the protection of civilians in armed conflict ( ibid. , §§ 708–709).

261 200 starvation and access to humanitarian relief 100 In a communication to the press in 1997 concerning the conflict in law”. Zaire, the ICRC appealed to all concerned to “respect the victims’ right to 101 assistance and protection”. Rule 56. The parties to the conflict must ensure the freedom of movement of authorised humanitarian relief personnel essential to the exercise of their functions. Only in case of imperative military necessity may their movements be temporarily restricted. Practice Volume II, Chapter 17, Section D. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The obligation to ensure freedom of movement is a corollary to the obligation to provide access to civilians in need and the prohibition on deliberately impeding the delivery of humanitarian assistance (see Rule 55). International and non-international armed conflicts The obligation to accord freedom of movement to authorised humanitarian 102 personnel is set forth in Additional Protocol I. Additional Protocol II requires that relief actions for the civilian population in need be organised, but does not contain a specific provision on the freedom of movement of humanitarian aid 103 personnel, which is essential to the provision of humanitarian aid. Amended Protocol II to the Convention on Certain Conventional Weapons implements the freedom of movement, as well as the need for rapid and unimpeded passage, of humanitarian relief personnel by imposing a duty on each party to a conflict to take “such measures as are necessary to protect the force or mission from the effects of mines, booby-traps and other devices in any area under its control”. It provides, in particular, that each high contracting party or party to a conflict shall: if access to or through any place under its control is necessary for the performance of the mission’s functions and in order to provide the personnel of the mission with safe passage to or through that place: 100 th International Conference of the Red Cross and Red Crescent, Res. II ( 26 ibid. , § 713). 101 ibid. , § 721). ICRC, Communication to the Press No. 97/08 ( 102 Additional Protocol I, Article 71(3) (adopted by consensus) ( ibid. , § 725). 103 Additional Protocol II, Article 18(2) (adopted by consensus) ( ibid. , § 680).

262 Rule 56 201 (aa) unless on-going hostilities prevent, inform the head of the mission of a safe route to that place if such information is available; or (bb) if information identifying a safe route is not provided in accordance with subparagraph (aa), so far as is necessary and feasible, clear a lane through 104 minefields. The need for humanitarian relief personnel to enjoy freedom of movement essential for the exercise of their functions has been claimed in practice with respect to both international and non-international armed conflicts. Violations of this rule have been condemned, regardless of whether the conflict was inter- national or non-international. The United Nations, in particular, has issued numerous statements and adopted numerous resolutions in this respect, many of them with regard to non-international armed conflicts. The UN Security Council, for example, has called upon all parties to the conflicts in Afghanistan, Angola, Bosnia and Herzegovina, Georgia, Liberia, Somalia, Tajikistan and the Great Lakes region to ensure the freedom of movement of humanitarian relief 105 personnel. In a resolution adopted in 1999 on protection of civilians in armed conflicts, the Security Council emphasised “the need for combatants to ensure the . . . freedom of movement of . . . personnel of international human- 106 itarian organizations”. In a resolution on the same subject adopted in 2000, the Security Council reiterated “its call to all parties concerned, including non- State parties, to ensure the . . . freedom of movement of . . . personnel of human- 107 itarian organizations”. The ICRC has called upon parties to both international and non-international 108 armed conflicts to respect this rule. No official contrary practice was found. Interpretation Most practice does not mention the requirement that the rule concern autho- rised humanitarian personnel, but it is self-evident that a party to the con- flict cannot be required to ensure the freedom of movement of an organisation it has not authorised. It must be stressed, however, that such authorisation 104 Amended Protocol II to the CCW, Article 12 (cited in Vol. II, Ch. 29, § 352). 105 UN Security Council, Res. 746 (cited in Vol. II, Ch. 17, § 734), Res. 751 ( ibid. , § 735), Res. 819 ( ibid. , § 736), Res. 998 ( ibid. , § 737), Res. 1075 ( ibid. , § 738), Res. 1078 ( ibid. , § 739), Res. 1080 ( ibid. ibid. , § 741), Res. 1088 ( ibid. , § 742), Res. 1173 and 1180 ( ibid. , § 743), , § 740), Res. 1083 ( ibid. ibid. ibid. , § 745), Res. 1213 ( Res. 1193 ( , § 746), Res. 1333 ( ibid. , § 750) , § 744), Res. 1202 ( ibid. , §§ 752–762). and Statements by the President ( 106 UN Security Council, Res. 1265 ( ibid. , § 748). 107 UN Security Council, Res. 1296 ( ibid. , § 749). 108 ibid. , § 772), Appeal in behalf of See, e.g., ICRC, Conflict in Southern Africa: ICRC appeal ( the civilians in Yugoslavia ( ibid. , § 773), Press Release No. 1705 ( ibid. , § 774), Press Release No. 1712 ( ibid. , § 775), Press Release No. 1726 ( ibid. , § 775), Memorandum on Respect for International Humanitarian Law in Angola ( ibid. , § 776) and Memorandum on Compliance with International Humanitarian Law by the Forces Participating in Op eration Turquoise ( ibid. , ́ § 777).

263 202 starvation and access to humanitarian relief cannot be refused arbitrarily (see commentary to Rule 55). In addition, the right of each party to the conflict to make sure that the personnel concerned 109 are actually involved in humanitarian aid work is recognised in practice. Pur- suant to the Third and Fourth Geneva Conventions, “the special position of the International Committee of the Red Cross in this field shall be recognised and 110 respected at all times”. Exception Additional Protocol I provides that “only in case of imperative military neces- sity may the activities of the relief personnel be limited or their movements 111 temporarily restricted”. The exception of imperative military necessity is justified on the basis that relief operations must not be allowed to interfere with military operations, lest the safety of humanitarian relief personnel be endangered. These restrictions can only be limited and temporary, however. In no case may they involve violations of the preceding rules (see Rules 53–55). 109 See also Additional Protocol I, Article 71(4) (adopted by consensus) ( ibid. , § 725). 110 Third Geneva Convention, Article 125, third paragraph; Fourth Geneva Convention, Article 142, third paragraph. 111 Additional Protocol I, Article 71(3) (adopted by consensus) ( ibid. , § 725).

264 chapter 18 DECEPTION Rule 57. Ruses of war are not prohibited as long as they do not infringe a rule of international humanitarian law. Practice Volume II, Chapter 18, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts This is a long-standing rule of customary international law already recognised in the Lieber Code and the Brussels Declaration, and codified in the Hague 2 1 Regulations. It is also set forth in Additional Protocol I. 3 The rule permitting ruses of war is stated in numerous military manuals. It 4 is supported by several official statements and other practice. Non-international armed conflicts This rule was included in the draft of Additional Protocol II by Committee III of the Diplomatic Conference leading to the adoption of the Additional Protocols, 1 Lieber Code, Articles 15–16 and 101 (cited in Vol. II, Ch. 18, § 5); Brussels Declaration, Article 14 ibid. ( ibid. , § 2). , § 6); Hague Regulations, Article 24 ( 2 Additional Protocol I, Article 37(2) (adopted by consensus) ( , § 3). ibid. 3 ibid. , §§ 11–12), Australia ( ibid. , §§ 13–14), Belgium See, e.g., the military manuals of Argentina ( ibid. , §§ 15–16), Benin ( ibid. , § 17), Cameroon ( ibid. , § 18), Canada ( ibid. , §§ 19–21), Croatia ( ( ibid. , § 22), Ecuador ( ibid. , § 23), France ( ibid. , §§ 24–25), Germany ( ibid. , § 26), Indonesia ( ibid. , § 28), Israel ( ibid. ibid. , §§ 30–31), Kenya ( ibid. , § 32), South Korea ( ibid. , § 33), , § 29), Italy ( ibid. , §§ 35–36), New Zealand ( ibid. Madagascar ( ibid. , § 37), Nigeria ( ibid. , , § 34), Netherlands ( ibid. , § 40), Spain ( ibid. , §§ 41–42), Sweden ( ibid. , § 43), Switzerland §§ 38–39), South Africa ( ( ibid. , § 44), Togo ( ibid. , § 45), United Kingdom ( ibid. , §§ 46–47), United States ( ibid. , §§ 48–50) and Yugoslavia ( , § 51). ibid. 4 See, e.g., the statement of the United States ( ibid. , § 59); the practice of Iraq ( ibid. , § 55) and United States ( ibid. , § 59) and the reported practice of Algeria ( ibid. , § 54), Malaysia ( ibid. , § 56) and United Kingdom ( ibid. , § 57). 203

265 204 deception but was deleted at the last moment as part of a package aimed at the adoption of 5 a simplified text. In addition, it is contained in other instruments pertaining 6 also to non-international armed conflicts. The rule permitting ruses of war provided they do not infringe a rule of inter- national humanitarian law is set forth in military manuals which are applicable 7 in or have been applied in non-international armed conflicts. Colombia’s Con- stitutional Court ruled in 1997 that the use of military tactics and stratagems must be in conformity with constitutional standards, implicitly recognising 8 that they may be applied in non-international armed conflicts. The practice collected gives examples in both international and non- international armed conflicts, while no practice was found suggesting ruses were prohibited in either type of conflict. Definition Ruses are acts intended to confuse the enemy. It is often stated that ruses are common in armed conflict. The UK Military Manual mentions the follow- ing examples of lawful ruses: surprises; ambushes; feigning attacks, retreats or flights; simulating quiet and inactivity; giving large strongpoints to a small force; constructing works, bridges, etc. which are not intended to be used; transmitting bogus signal messages, and sending bogus despatches and news- papers with a view to their being intercepted by the enemy; making use of the enemy’s signals, watchwords, wireless code signs and tuning calls, and words of command; conducting a false military exercise on the wireless on a frequency easily interrupted while substantial troop movements are taking place on the ground; pretending to communicate with troops or reinforcements which do not exist; moving landmarks; constructing dummy airfields and air- craft; putting up dummy guns or dummy tanks; laying dummy mines; remov- ing badges from uniforms; clothing the men of a single unit in the uniforms of several different units so that prisoners and dead may give the idea of a large force; and giving false ground signals to enable airborne personnel or 5 Draft Additional Protocol II, Article 21(2) ( ibid. , § 4). 6 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , § 8); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. ibid. , , § 9); San Remo Manual, para. 110 ( § 10). 7 See, e.g., the military manuals of Australia ( , § 13), Benin ( ibid. , § 17), Canada ( ibid. , § 21), ibid. Croatia ( ibid. , § 22), Ecuador ( ibid. , § 23), Germany ( ibid. , § 26), Italy ( ibid. , §§ 30–31), Kenya , ( , § 32), Madagascar ( ibid. , § 34), Nigeria ( ibid. , § 38), South Africa ( ibid. , § 40), Togo ( ibid. ibid. § 45) and Yugoslavia ( ibid. , § 51). 8 Colombia, Constitutional Court, Constitutional Case No. T-303 ( ibid. , § 53).

266 Rule 58 205 supplies to be dropped in a hostile area, or to induce aircraft to land in a hostile 9 area. Rule 58. The improper use of the white flag of truce is prohibited. Practice Volume II, Chapter 18, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts This is a long-standing rule of customary international law already recognised 10 in the Lieber Code, the Brussels Declaration and the Oxford Manual. It is cod- 11 ified in the Hague Regulations. The Report of the Commission on Respon- sibility set up after the First World War identified the “misuse of flags” as a 12 violation of the laws and customs of war subject to criminal prosecution. This 13 rule is contained in Additional Protocol I. Under the Statute of the Interna- tional Criminal Court, “making improper use of a flag of truce” constitutes a war crime in international armed conflicts when it results in death or serious 14 personal injury. The prohibition of improper use of the white flag of truce is contained in 15 numerous military manuals. Violations of this rule constitute an offence 9 ( ibid. , § 46); see also the military manuals of Argentina ( ibid. , United Kingdom, Military Manual ibid. , §§ 13–14), Belgium ( § 12), Australia ( , § 15), Canada ( ibid. , § 20), Croatia ( ibid. , § 22), ibid. Ecuador ( , § 23), France ( ibid. , § 25), Germany ( ibid. , § 26), Hungary ( ibid. , § 27), Indonesia ibid. ibid. ibid. ibid. , § 29), Italy ( ibid. , § 31), Kenya ( ibid. , § 32), South Korea ( ( , § 33), , § 28), Israel ( ibid. ibid. Madagascar ( , §§ 35–36), New Zealand ( ibid. , § 37), Nigeria ( ibid. , , § 34), Netherlands ( ibid. , § 40), Spain ( ibid. , §§ 41–42), Sweden ( ibid. , § 43), Switzerland §§ 38–39), South Africa ( ( ibid. , § 44), United Kingdom ( ibid. , § 47), United States ( ibid. , §§ 48–50) and Yugoslavia ( ibid. , § 51). 10 ibid. , § 72) and Article 117 ( , § 73); Brussels Declaration, Article Lieber Code, Article 114 ( ibid. , § 74); Oxford Manual, Article 8(d) ( , § 75). ibid. ibid. 13(f) ( 11 , § 68). Hague Regulations, Article 23(f) ( ibid. 12 ibid. , § 76). Report of the Commission on Responsibility ( 13 ibid. Additional Protocol I, Article 38(1) (adopted by consensus) ( , § 69). 14 ibid. ICC Statute, Article 8(2)(b)(vii) ( , § 71). 15 See, e.g., the military manuals of Argentina ( ibid. , §§ 80–81), Australia ( ibid. , §§ 82–83), Belgium ( , § 84), Burkina Faso ( ibid. , § 85), Cameroon ( ibid. , §§ 86–87), Canada ( ibid. , § 88), Congo ibid. ( ibid. , § 89), Ecuador ( ibid. , § 90), France ( ibid. , §§ 91–92), Germany ( ibid. , § 93), Italy ( ibid. , § 94), South Korea ( ibid. ibid. , § 96), Madagascar ( ibid. , § 97), Mali ( ibid. , § 98), , § 95), Lebanon ( Morocco ( , § 99), Netherlands ( ibid. , §§ 100–101), New Zealand ( ibid. , § 102), Nigeria ( ibid. , ibid. §§ 103–105), Russia ( ibid. , § 106), Senegal ( ibid. , § 107), South Africa ( ibid. , § 108), Spain ( ibid. , § 109), Sweden ( ibid. , § 110), United Kingdom ( ibid. , §§ 111–112), United States ( ibid. , §§ 113– 116) and Yugoslavia ( ibid. , § 117).

267 206 deception 16 This rule is also supported by official under the legislation of many States. 17 statements and other practice. Non-international armed conflicts The prohibition of improper use of the flag of truce was included in the draft of Additional Protocol II by Committee III of the Diplomatic Conference leading to the adoption of the Additional Protocols but was deleted at the last moment 18 as part of a package aimed at the adoption of a simplified text. The prohibition is contained in other instruments pertaining also to non-international armed 19 conflicts. This rule is set forth in military manuals which are applicable in or have been 20 applied in non-international armed conflicts. Violations of this rule consti- 21 tute an offence under the legislation of many States. No official contrary practice was found. There is no practice either to indicate that it would be lawful to use improperly the protection of a white flag of truce in non-international armed conflicts. Such improper use would undermine the protection to which persons advancing in good faith under a white flag are entitled (see commentary to Rule 67). It can be concluded that the general abstention from improperly using the white flag of truce in practice is based on a legitimate expectation to that effect. 16 See, e.g., the legislation of Algeria ( ibid. , §§ 120–122), Azerbaijan ( ibid. , , § 118), Australia ( ibid. , § 124), Bosnia and Herzegovina ( ibid. , § 125), Burkina Faso ( ibid. , § 126), § 123), Belarus ( ibid. ibid. , § 128), China ( ibid. , § 129), Congo ( Canada ( , § 130), Democratic Republic of the ibid. Congo ( , § 131), C ibid. ote d’Ivoire ( ibid. , § 132), Croatia ( ibid. , § 133), Estonia ( ibid. , § 134), ˆ France ( , § 135), Georgia ( ibid. , § 136), Germany ( ibid. , § 137), Guinea ( ibid. , § 138), ibid. ibid. , § 139), Italy ( ibid. , §§ 140–141), Mali ( ibid. , § 142), Netherlands ( ibid. Ireland ( , §§ 144– 145), New Zealand ( , § 146), Nicaragua ( ibid. , § 147), Norway ( ibid. , § 148), Poland ( ibid. ibid. , § 149), Slovenia ( ibid. , § 150), Spain ( ibid. , §§ 151–152), Sweden ( ibid. , § 153), United King- dom ( ibid. , § 155), United States ( ibid. , § 156) and Yugoslavia ( ibid. , § 157); see also the draft legislation of Argentina ( ibid. ibid. , § 127) and Trinidad and Tobago ( ibid. , , § 119), Burundi ( § 154). 17 , § 160) and the practice of the United Kingdom See, e.g., the statement of the United States ( ibid. , § 159). ibid. ( 18 ibid. , § 70). Draft Additional Protocol II, Article 23(2) ( 19 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the ibid. , § 77); Agreement on the Application of IHL between the Parties to the SFRY, para. 6 ( ibid. , § 78). Conflict in Bosnia and Herzegovina, para. 2.5 ( 20 See, e.g., the military manuals of Australia ( , § 82), Ecuador ( ibid. , § 90), Germany ( ibid. , ibid. § 93), Italy ( , § 94), Lebanon ( ibid. , § 96), Madagascar ( ibid. , § 97), Nigeria ( ibid. , §§ 103 and ibid. 105), South Africa ( ibid. , § 108) and Yugoslavia ( ibid. , § 117). 21 See, e.g., the legislation of Azerbaijan ( , § 123), Belarus ( ibid. , § 124), Bosnia and Herzegovina ibid. ( , § 125), Democratic Republic of the Congo ( ibid. , § 131), Croatia ( ibid. , § 133), Estonia ibid. ( ibid. , § 134), Germany ( ibid. , § 137), Guinea ( ibid. , § 138), Nicaragua ( ibid. , § 147), Poland ( ibid. , § 149), Slovenia ( , § 150), Spain ( ibid. , § 152), Sweden ( ibid. , § 153) and Yugoslavia ( ibid. , ibid. § 157); see also the legislation of Burkina Faso ( ibid. , § 126) and Italy ( ibid. , §§ 140–141), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 119).

268 Rule 59 207 Definition Improper use refers to any use other than that for which the flag of truce was intended, namely a request to communicate, for example, in order to negotiate 22 a cease-fire or to surrender. Any other use, for example, to gain a military advantage over the enemy, is improper and unlawful. Rule 59. The improper use of the distinctive emblems of the Geneva Conventions is prohibited. Practice Volume II, Chapter 18, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts This is a long-standing rule of customary international law already recognised 23 It was in the Lieber Code, the Brussels Declaration and the Oxford Manual. codified in the 1899 and 1907 Hague Regulations and the Geneva Conven- 25 24 tions of 1906, 1929 and 1949. It is set forth in Additional Protocol I. Under the Statute of the International Criminal Court, “making improper use of the distinctive emblems of the Geneva Conventions” constitutes a war crime in international armed conflicts when it results in death or serious personal 26 injury. The prohibition of improper use of the distinctive emblems has been stated 27 in numerous military manuals. Violation of this rule is an offence under the 22 See Vol. II, Ch. 19, §§ 49–92. 23 Lieber Code, Article 117 (cited in Vol. II, Ch. 18, § 186); Brussels Declaration, Article 13(f) ( ibid. , § 187); Oxford Manual, Article 8(d) ( ibid. , § 188). 24 ibid. 1899 Hague Regulations, Article 23(f) ( ibid. , , § 168); 1907 Hague Regulations, Article 23(f) ( § 170); 1906 Geneva Convention, Articles 27–28 ( , § 169); 1929 Geneva Convention, Article ibid. ibid. 24 ( ibid. , § 172); First Geneva Convention, Article 39 ( ibid. , § 173), , § 171) and Article 28 ( Article 44 ( ibid. , § 174), Article 53 ( ibid. , § 175) and Article 54 ( ibid. , § 176); Second Geneva Convention, Article 41, first paragraph ( ibid. ibid. , § 178) and Article 45 , § 177), Article 44 ( ibid. ( , § 179). 25 Additional Protocol I, Article 38(1) (adopted by consensus) ( ibid. , § 182). 26 ICC Statute, Article 8(2)(b)(vii) ( , § 185). ibid. 27 See, e.g., the military manuals of Argentina ( ibid. , §§ 196–197), Australia ( ibid. , §§ 198–199), Belgium ( ibid. , §§ 200–201), Burkina Faso ( ibid. , § 202), Cameroon ( ibid. , §§ 203–204), Canada ( , §§ 205–206), Colombia ( ibid. , § 207), Congo ( ibid. , § 208), Dominican Republic ( ibid. , ibid. § 209), Ecuador ( ibid. , § 210), France ( ibid. , §§ 211–212), Germany ( ibid. , § 213), Indonesia ( ibid. , § 214), Italy ( ibid. , § 215), Japan ( ibid. , § 216), South Korea ( ibid. , §§ 217–218), Lebanon

269 208 deception 28 29 legislation of many States. This rule is also supported by national case-law, 30 In its judgement in the official statements and other practice. Emblem case in 1994, Germany’s Federal Supreme Court stated that there was an essential 31 common interest in the protection of the emblems against unauthorised use. Non-international armed conflicts Additional Protocol II provides for the prohibition of improper use of the distinc- 32 tive emblems. In addition, this prohibition is contained in other instruments 33 pertaining also to non-international armed conflicts. The prohibition of improper use of the distinctive emblems is set forth in military manuals which are applicable in or have been applied in 34 non-international armed conflicts. Violation of this rule is an offence 35 under the legislation of many States. This rule is supported by national , § 219), Madagascar ( ibid. , § 220), Mali ( ibid. , § 221), Morocco ( ibid. , § 222), Netherlands ( ibid. , §§ 223–224), New Zealand ( ibid. , § 225), Nigeria ( ibid. , § 226), Russia ( ibid. , § 227), Senegal ( ibid. , § 228), Spain ( , § 232), United , §§ 229–230), Sweden ( ibid. , § 231), Switzerland ( ibid. ibid. ( ibid. , §§ 233–234), United States ( ibid. , §§ 235–238) and Yugoslavia ( ibid. , § 239). Kingdom ( ibid. 28 ibid. , §§ 240–412). See, e.g., legislation ( 29 See, e.g., Colombia, Council of State, ( ibid. , § 413); Germany, Administrative Case No. 11369 Federal Supreme Court, ( ibid. , § 414); Netherlands, Supreme Court, Red Cross Emblem case ( ibid. Emblem case , § 415). 30 ibid. ibid. , § 421), See, e.g., the statement of the United States ( , § 425), the practice of France ( , § 423) and United Kingdom ( ibid. , § 424) and the reported practice of Germany ( ibid. Iraq ( ibid. , § 422). 31 Germany, Federal Supreme Court, Emblem case ( ibid. , § 414). 32 ibid. Additional Protocol II, Article 12 (adopted by consensus) ( , § 184). 33 ibid. , § 189); Memoran- See, e.g., Hague Statement on Respect for Humanitarian Principles ( , dum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. § 190); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and ibid. , § 191). Herzegovina, paras. 2.5 and 3 ( 34 ibid. See, e.g., the military manuals of Argentina ( ibid. , §§ 198–199), Cameroon , § 197), Australia ( ( ibid. , § 204), Canada ( ibid. , §§ 205–206), Colombia ( ibid. , § 207), Ecuador ( ibid. , § 210), France ( ibid. , § 212), Germany ( ibid. , § 213), Italy ( ibid. , § 215), Lebanon ( ibid. , § 219), Madagascar ( ibid. , § 220), New Zealand ( ibid. ibid. , § 227), Spain ( ibid. , § 230) and Yugoslavia ( ibid. , , § 225), Russia ( § 239). 35 , § 242), Armenia ( ibid. , §§ 245–246), See, e.g., the legislation of Antigua and Barbuda ( ibid. , § 251), Belarus ( , § 258), Belize ( , §§ 256–257), Belgium ( ibid. ibid. ibid. , Azerbaijan ( ibid. , § 260), Bosnia and Herzegovina ( ibid. , §§ 261–262), Bulgaria ( ibid. , § 266), § 259), Bolivia ( ibid. ibid. , § 270), Chile ( ibid. , § 274), China ( Cameroon ( , § 275), Democratic Republic of the ibid. Congo ( , § 279), Costa Rica ( ibid. , § 282), Croatia ( ibid. , §§ 284–285), Czech Republic ( ibid. , ibid. ibid. , § 297), Ethiopia ( ibid. § 291), El Salvador ( ibid. , § 298), Finland ( ibid. , , § 296), Estonia ( ibid. , § 306), Guatemala ( ibid. , § 311), Guinea ( ibid. , § 313), Hungary §§ 299–300), Germany ( ( ibid. , § 317), Ireland ( ibid. , § 321), Kazakhstan ( ibid. , § 329), Kyrgyzstan ( ibid. , § 331), Malta ( ibid. ibid. , §§ 345–346), Netherlands ( ibid. , § 350), Nicaragua ( ibid. , §§ 355– , § 342), Moldova ( ibid. ibid. , § 361), Poland ( ibid. , §§ 365–366), Saint Kitts and 356), Norway ( , §§ 359–360), Panama ( ibid. , § 370), Slovakia ( ibid. , § 376), Slovenia ( ibid. Nevis ( ibid. , §§ 380–381), , §§ 377–378), Spain ( Sweden ( ibid. , § 384), Tajikistan ( ibid. , §§ 386–387), Togo ( ibid. , § 391), Ukraine ( ibid. , § 398 and 400), Uruguay ( ibid. , § 405), Yemen ( ibid. , § 408) and Yugoslavia ( ibid. , §§ 409–410); see also the legislation ibid. , § 265), Burkina Faso ( ibid. , § 267), Czech Republic ( ibid. , § 290), of Bulgaria ( Hungary ( ibid. , § 316), Italy ( ibid. , §§ 323 and 325), Nicaragua ( ibid. , § 354), Romania ( ibid. , § 367), Slovakia ( , § 375) and Togo ( ibid. , § 390), the application of which is not excluded ibid. in time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 244) and Latvia ( ibid. , § 332).

270 Rule 59 209 36 It is also supported by official statements made in the context of case-law. 37 non-international armed conflicts. In 1977, the 23rd International Conference of the Red Cross requested that States parties to the Geneva Conventions “enforce effectively the existing national legislation repressing the abuses of the emblem of the red cross, red crescent, red lion and sun, to enact such legislation wherever it does not exist at present and to provide for punishment by way of adequate sentences for 38 offenders”. The ICRC has appealed to parties to both international and non- international armed conflicts to refrain from the misuse of the distinctive 39 emblems. While several instances of improper use of the distinctive emblems have been reported, they have been denounced, principally by the ICRC but also by third 40 States and the Inter-American Commission on Human Rights. Some of the parties involved in those incidents recognised that such acts were unlawful and 41 stated that they would take measures to prevent future occurrences. It can be concluded that the general abstention from improperly using the distinctive emblems in practice is based on a legitimate expectation to that effect. Definition Improper use refers to any use other than that for which the distinctive emblems were intended, namely the identification of medical and religious personnel, medical units and medical transports, as well as personnel and property of the components of the International Movement of the Red Cross and Red Crescent. These uses are defined in the Geneva Conventions and in Additional Protocols 42 I and II. This definition of improper use is also used in numerous military 43 manuals and in the legislation of a large number of States. 36 See, e.g., Colombia, Council of State, Administrative Case No. 11369 ibid. , § 413). ( 37 ibid. , § 417) and Colombia ( See, e.g., the statements of Bosnia and Herzegovina ( , §§ 419– ibid. 420). rd 38 23 International Conference of the Red Cross, Res. XI ( ibid. , § 434). 39 See, e.g., ICRC, Communication to the Press No. 87/19/MMR ( ibid. , § 443), Press Release No. 1673 ( ibid. , § 444) Press Release, ICRC denies allegations ( ibid. , § 448), Communication to the Press No. 93/17 ( ibid. , § 450), Memorandum on Respect for International Humanitarian ibid. , § 452), Memorandum on Compliance with International Humanitarian Law in Angola ( eration Turquoise ( ibid. , § 453), Information to the Press Law by the Forces Participating in Op ́ ibid. , § 458), Communication to the Press No. 00/42 ( ibid. , § 460) and the practice reported in ( ibid. ICRC archive documents ( , §§ 439, 441–442, 445, 449, 451 and 454). 40 ibid. See, e.g., ICRC, Communication to the Press No. 87/19/MMR ( , § 443); the practice reported ibid. , §§ 429, 441–442, 449, 454 and 458) and Inter-American in ICRC archive documents ( ibid. , Commission on Human Rights, Report on the situation of human rights in Nicaragua ( § 436). 41 See, e.g., the practice reported in ICRC archive documents ( ibid. , §§ 441 and 454). 42 ibid. , §§ 173–174 and 180); Second See First Geneva Convention, Articles 24–27 and 38–44 ( Geneva Convention, Articles 22, 24–25, 27, 36–39 and 41–44 ( ibid. , §§ 177–178 and 180); Fourth Geneva Convention, Articles 18–22 ( ibid. , § 180); Additional Protocol I, Articles 8, 18 and 22–23 ( ibid. , § 183); Additional Protocol II, Article 12 (adopted by consensus) ( ibid. , § 184). 43 ibid. , §§ 196–197), Belgium ( ibid. , §§ 200–201), See, e.g., the military manuals of Argentina ( , §§ 229–230), Sweden ibid. , § 209), Ecuador ( ibid. , § 210), Spain ( ibid. Dominican Republic (

271 210 deception Rule 60. The use of the United Nations emblem and uniform is prohibited, except as authorised by the organisation. Practice Volume II, Chapter 18, Section D. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The prohibition of unauthorised use of the United Nations emblem and uni- 44 form is included in Additional Protocol I. Under the Statute of the Interna- tional Criminal Court, making improper, i.e., unauthorised, use of the flag or the military insignia or uniforms of the United Nations constitutes a war crime in international armed conflicts when it results in death or serious personal 45 injury. The prohibition of the unauthorised use of the United Nations emblem and 46 uniform is recognised in many military manuals. Violation of this rule is an 47 offence under the legislation of numerous States. This practice includes that 48 of States not, or not at the time, party to Additional Protocol I. ( ibid. , § 232), United Kingdom ( ibid. , § 233) and United States ( ibid. , ibid. , § 231), Switzerland ( , §§ 240–412). §§ 235–238) and legislation ( ibid. 44 , § 465). ibid. Additional Protocol I, Article 38(2) (adopted by consensus) ( 45 ibid. , § 468). ICC Statute, Article 8(2)(b)(vii) ( 46 ibid. , § 473), Australia ( See, e.g., the military manuals of Argentina ( , §§ 474–475), Belgium ibid. ( , § 476), Burkina Faso ( ibid. , § 477), Cameroon ( ibid. , §§ 478–479), Canada ( ibid. , § 480), ibid. ibid. ibid. , § 482), Ecuador ( ibid. , § 483), France ( ibid. , §§ 484–485), Colombia ( , § 481), Congo ( ibid. , § 486), Italy ( ibid. , § 487), Mali ( ibid. , § 488), Morocco ( ibid. , § 489), Netherlands Germany ( , ( ibid. , § 491), Russia ( ibid. , § 492), Senegal ( ibid. , § 493), Spain ( ibid. , § 490), New Zealand ( ibid. § 494), Sweden ( ibid. , § 495), United States ( ibid. , §§ 496–497) and Yugoslavia ( ibid. , § 498). 47 See, e.g., the legislation of Algeria ( ibid. , § 499), Armenia ( ibid. , § 501), Australia ( ibid. , §§ 502–503), Azerbaijan ( ibid. ibid. , § 505), Bosnia and Herzegovina ( ibid. , , § 504), Belarus ( ibid. ibid. , § 509), Democratic Republic of the Congo ( ibid. , , § 507), Canada ( § 506), Burkina Faso ( ibid. , § 511), C , § 513), Czech Republic ote d’Ivoire ( ibid. , § 512), Croatia ( ibid. § 510), Congo ( ˆ , , § 514), Denmark ( ( , § 515), France ( ibid. , § 516), Georgia ( ibid. , § 517), Germany ( ibid. ibid. ibid. § 518), Guinea ( ibid. , § 519), Ireland ( ibid. , § 520), Italy ( ibid. , § 521), Lithuania ( ibid. , § 522), Mali ( ibid. , §§ 523–524), Netherlands ( ibid. , § 525), New Zealand ( ibid. , § 526), Norway ( ibid. , §§ 527–528), Poland ( ibid. ibid. , § 530), Slovenia ( ibid. , § 531), Spain ( ibid. , , § 529), Slovakia ( ibid. , § 533), Switzerland ( ibid. , § 534), United Kingdom ( ibid. , § 536) and § 532), Sweden ( Yugoslavia ( ibid. , § 537); see also the draft legislation of Argentina ( ibid. , § 500), Burundi ( ibid. , § 508) and Trinidad and Tobago ( , § 535). ibid. 48 See the military manuals of Mali ( ibid. , § 488) and United States ( ibid. , § 497), the legislation of Azerbaijan ( ibid. , § 504), the statement of the United States ( ibid. , § 541), the practice of United Kingdom ( ibid. , § 540), and the reported practice of Indonesia ( ibid. , § 539).

272 Rule 61 211 Non-international armed conflicts This rule was included in the draft of Additional Protocol II by Committee III of the Diplomatic Conference leading to the adoption of the Additional Protocols but was deleted at the last moment as part of a package aimed at the adoption 49 of a simplified text. It is contained in other instruments pertaining also to 50 non-international armed conflicts. The prohibition of the unauthorised use of the United Nations emblem and uniform is set forth in military manuals which are applicable in or have been 51 applied in non-international armed conflicts. Violation of this rule is an 52 offence under the legislation of numerous States. No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have generally been condemned, in particular in the context of the conflict in Bosnia and 53 Herzegovina. No party to a conflict has denied the applicability of this rule or claimed that it would be lawful to use United Nations emblems and uniforms without being so authorised. Rule 61. The improper use of other internationally recognised emblems is prohibited. Practice Volume II, Chapter 18, Section E. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. 49 Draft Additional Protocol II, Article 23(2) ( ibid. , § 466). 50 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the ibid. , § 470); Agreement on the Application of IHL between the Parties to the SFRY, para. 6 ( ibid. Conflict in Bosnia and Herzegovina, para. 2.5 ( , § 471). 51 See, e.g., the military manuals of Australia ( ibid. ibid. , § 481), Ecuador ( ibid. , , § 474), Colombia ( § 483), Germany ( ibid. , § 486), Italy ( ibid. , § 487) and Yugoslavia ( ibid. , § 498). 52 See, e.g., the legislation of Armenia ( , § 501), Azerbaijan ( ibid. , § 504), Belarus ( ibid. , ibid. ibid. , § 510), ibid. § 505), Bosnia and Herzegovina ( , § 506), Democratic Republic of the Congo ( ibid. , § 513), Germany ( Croatia ( , § 518), Guinea ( ibid. , § 519), Poland ( ibid. , § 529), Slovenia ibid. ( ibid. , § 531), Spain ( ibid. , § 532), Sweden ( ibid. , § 533) and Yugoslavia ( ibid. , § 537); see also the legislation of Burkina Faso ( , § 507), Czech Republic ( ibid. , § 514), Italy ( ibid. , § 521) ibid. and Slovakia ( ibid. , § 530), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 500). 53 See, e.g., UN Secretary-General, Report submitted pursuant to Security Council Resolution 1010 (1995) ( ibid. , § 543).

273 212 deception International armed conflicts With respect to the distinctive emblem for cultural property, this rule is con- 54 tained in the Hague Convention for the Protection of Cultural Property. It is also contained in Article 38(1) of Additional Protocol I with respect to inter- nationally recognised emblems in general, including the protective emblem of 55 cultural property. Article 66(8) of Additional Protocol I requires States party to take measures to prevent and repress any misuse of the international dis- 56 tinctive sign of civil defence. The prohibition of the improper use of other internationally recognised 57 emblems is stated in numerous military manuals. Violation of this rule is an 58 offence under the legislation of numerous States. This rule is also supported by the practice of States not, or not at the time, party to Additional Protocol I 59 or to the Hague Convention for the Protection of Cultural Property. Non-international armed conflicts With respect to the distinctive emblem for cultural property, this rule is con- 60 tained in the Hague Convention for the Protection of Cultural Property. The rule that it is “forbidden to misuse deliberately in armed conflict other interna- tionally recognized protective emblems”, including the protective emblem of cultural property, was included by consensus in the draft of Additional Protocol II by Committee III of the Diplomatic Conference leading to the adoption of the Additional Protocols but was deleted at the last moment as part of a package 61 aimed at the adoption of a simplified text. 54 Hague Convention for the Protection of Cultural Property, Article 17 ( ibid. , § 550). 55 Additional Protocol I, Article 38(1) (adopted by consensus) ( ibid. , § 551). 56 Additional Protocol I, Article 66(8) (adopted by consensus) ( , § 552). ibid. 57 ibid. , § 556), Australia ( , §§ 557–558), Belgium See, e.g., the military manuals of Argentina ( ibid. , § 559), Burkina Faso ( ibid. ibid. ibid. , §§ 561–562), Canada ( ibid. , § 563), ( , § 560), Cameroon ( ibid. , § 564), Congo ( ibid. , § 565), Ecuador ( ibid. , § 566), France ( Colombia ( , §§ 567–568), ibid. Germany ( , § 569), Italy ( ibid. , § 570), Lebanon ( ibid. , § 571), Mali ( ibid. , § 572), Morocco ibid. ibid. , § 573), Netherlands ( ibid. , § 574), New Zealand ( ibid. , § 575), Russia ( ibid. , § 576), Senegal ( ( ibid. , § 577), Spain ( ibid. , § 578), Sweden ( ibid. , § 579), United States ( ibid. , §§ 580–581) and Yugoslavia ( ibid. , § 582). 58 See, e.g., the legislation of Algeria ( ibid. , § 585), Armenia ( ibid. , § 586), ibid. , § 583), Argentina ( , § 587), Belarus ( ibid. , § 589), Bosnia and Herzegovina ( ibid. , § 590), Burkina Australia ( ibid. ibid. , § 591), Democratic Republic of the Congo ( ibid. , § 592), Cook Islands ( ibid. , § 593), Faso ( C ibid. , § 594), Croatia ( ibid. , § 595), Denmark ( ibid. , § 596), Estonia ( ibid. , § 597), ote d’Ivoire ( ˆ ibid. , § 598), France ( ibid. , § 599), Guinea ( ibid. , § 600), Ireland ( ibid. , § 601), Italy Finland ( ( ibid. , § 602), Mali ( ibid. , § 603), Norway ( ibid. , §§ 604–605), Poland ( ibid. , § 606), Slovenia ( ibid. ibid. , § 608), Sweden ( ibid. , §§ 609–610), Switzerland ( ibid. , §§ 611–612), , § 607), Spain ( ibid. , § 613), Yugoslavia ( ibid. , § 614) and Zimbabwe ( ibid. , § 615); see also United Kingdom ( the draft legislation of Argentina ( ibid. , § 584) and Bangladesh ( ibid. , § 588). 59 ibid. , §§ 580–581), the statements of Israel See the military manuals of the United States ( ( ibid. , § 617) and United States ( ibid. , § 619) and the practice of the United Kingdom ( ibid. , § 618). 60 Hague Convention for the Protection of Cultural Property, Article 17 ( ibid. , § 550). 61 Draft Additional Protocol II, Article 23 ( ibid. , § 554).

274 Rule 62 213 The prohibition of the improper use of other internationally recognised emblems is stated in military manuals which are applicable in or have been 62 applied in non-international armed conflicts. Violation of this rule is an 63 offence under the legislation of numerous States. No official contrary practice was found with respect to either international or non-international armed conflicts. No party has denied the applicability of this rule or claimed that it would be lawful to use improperly internationally recognised emblems. Improper use would also undermine the protection due to persons and objects identified by such emblems. Definitions The term “other internationally recognised emblems” includes the protective emblem of cultural property, the international distinctive sign of civil defence and the international special sign for works and installations containing dan- gerous forces. It also includes the protective emblem for hospital zones and 64 localities, the protective emblem for hospital and safety zones and locali- 65 66 ties, the letters “PW” or “PG” used to mark prisoner-of-war camps and the 67 letters “IC” used to mark civilian internment camps. The phrase “improper use” refers to any use other than that for which these emblems were intended, namely the identification of the respective objects, zones, localities and camps. Rule 62. Improper use of the flags or military emblems, insignia or uniforms of the adversary is prohibited. Practice Volume II, Chapter 18, Section F. 62 ibid. , § 557), Colombia ( ibid. , § 564), Ecuador ( ibid. See, e.g., the military manuals of Australia ( , § 566), Germany ( , § 569), Italy ( ibid. , § 570), Lebanon ( ibid. ibid. ibid. , , § 571) and Yugoslavia ( § 582). 63 See, e.g., the legislation of Argentina ( ibid. , § 585), Armenia ( ibid. , § 586), Belarus ( ibid. , § 589), Bosnia and Herzegovina ( ibid. ibid. , § 592), Croatia , § 590), Democratic Republic of the Congo ( , § 597), Guinea ( ibid. ibid. ( ibid. , § 595), Denmark ( ibid. , § 600), Norway ( ibid. , , § 596), Estonia ( §§ 604–605), Poland ( ibid. , § 606), Slovenia ( ibid. , § 607), Spain ( ibid. , § 608), Sweden ( ibid. , § 610), Switzerland ( , § 612) and Yugoslavia ( ibid. , § 614); see also the legislation of Burkina ibid. Faso ( ibid. , § 591) and Italy ( ibid. , § 602), the application of which is not excluded in time of non- international armed conflict, and the draft legislation of Argentina ( ibid. , § 584) and Bangladesh ( , § 588). ibid. 64 First Geneva Convention, Article 23 and Annex I, Article 6. 65 Fourth Geneva Convention, Article 14 and Annex I, Article 6. 66 Third Geneva Convention, Article 23, third paragraph. 67 Fourth Geneva Convention, Article 83, third paragraph.

275 214 deception Summary State practice establishes the customary nature of this rule in international armed conflicts. It can be argued that it should also apply in non-international armed conflicts when the parties to the conflict do in fact wear uniforms. International armed conflicts This is a long-standing rule of customary international law already recognised 68 in the Lieber Code, the Brussels Declaration and the Oxford Manual. It was 69 codified in the Hague Regulations. Additional Protocol I prohibits the use of enemy flags, military emblems, insignia or uniforms “while engaging in attacks 70 or in order to shield, favour, protect or impede military operations”. Under the Statute of the International Criminal Court, “making improper use . . . of the flag or of the military insignia and uniform of the enemy” constitutes a war crime in international armed conflicts when it results in death or serious 71 personal injury. 72 This rule is set forth in numerous military manuals. Sweden’s IHL Manual considers that the prohibition of improper use of emblems of nationality in Article 39 of Additional Protocol I is a codification of customary international 74 73 law. Violation of this rule is an offence under the legislation of many States. 75 The rule is also supported by official statements and other practice. Some practice was found that considers the wearing of enemy uniforms as 76 perfidious. This does not square entirely, however, with the definition of 68 Lieber Code, Articles 63 and 65 (cited in Vol. II, Ch. 18, § 634); Brussels Declaration, Article , § 635); Oxford Manual, Article 8(d) ( ibid. , § 636). 13(f) ( ibid. 69 ibid. , § 627). Hague Regulations, Article 23(f) ( 70 Additional Protocol I, Article 39(2) (adopted by consensus) ( ibid. , § 630). 71 ibid. ICC Statute, Article 8(2)(b)(vii) ( , § 633). 72 ibid. , §§ 641–642), Australia ( , §§ 643–644), See, e.g., military manuals of Argentina ( ibid. , §§ 645–646), Burkina Faso ( , § 647), Cameroon ( ibid. , §§ 648–649), Canada ibid. ibid. Belgium ( , § 650), Congo ( ibid. ( ibid. , § 652), Ecuador ( ibid. , § 653), France ( ibid. , ibid. , § 651), Croatia ( ibid. , § 658), Hungary ( §§ 654 and 657), Germany ( , § 659), Israel ( ibid. , §§ 661–662), Italy ibid. ( , § 664), South Korea ( ibid. , § 665), Lebanon ( ibid. , § 666), Mali ( ibid. , § 668), Morocco ( ibid. ibid. , § 669), New Zealand ( ibid. , § 672), Nigeria ( ibid. , §§ 673–674), Russia ( ibid. , § 676), Senegal ( ibid. , § 677), South Africa ( ibid. , § 678), Spain ( ibid. , § 679), Sweden ( ibid. , § 680), Switzerland ( ibid. , § 681), United Kingdom ( ibid. ibid. , §§ 684–686) and Yugoslavia , §§ 682–683), United States ( ibid. , § 687). ( 73 IHL Manual ibid. , § 680). ( Sweden, 74 See, e.g., the legislation of Algeria ( ibid. , § 690), Australia ( ibid. , § 691), ibid. , § 688), Armenia ( ibid. , § 692), Canada ( ibid. , § 694), Colombia ( ibid. Belarus ( ibid. , § 696), Egypt , § 695), Congo ( ( , § 697), Georgia ( ibid. , § 698), Germany ( ibid. , § 699), Greece ( ibid. , § 700), Ireland ( ibid. , ibid. § 701), Italy ( ibid. , §§ 702–703), Mali ( ibid. , § 704), Netherlands ( ibid. , § 705), New Zealand ( ibid. , § 706), Nicaragua ( ibid. , § 707), Norway ( ibid. , § 708), Poland ( ibid. , § 710), Spain ( ibid. , §§ 711–712), Syria ( ibid. ibid. , § 716), United States ( ibid. , § 717) and , § 714), United Kingdom ( , ibid. Yugoslavia ( , § 689), Burundi ( ibid. , § 718); see also the draft legislation of Argentina ( ibid. § 693) and Trinidad and Tobago ( ibid. , § 715). 75 See, e.g., the reported practice of Germany ( ibid. , § 721), Iraq ( ibid. , § 723) and South Korea ( , § 725). ibid. 76 See, e.g., the military manuals of France ( ibid. , §§ 655–656), Hungary ( ibid. , § 659), Israel ( ibid. , § 662), Romania ( ibid. , § 675) and Switzerland ( ibid. , § 681).

276 Rule 62 215 perfidy inasmuch as enemy uniforms are not entitled to specific protection under humanitarian law, even though the wearing of such uniforms may invite the confidence of the enemy (for a definition of perfidy, see commentary to 77 Rule 65). Other practice considers it a violation of the principle of good faith. Definition of improper use The Brussels Declaration, the Oxford Manual and the Hague Regulations pro- hibit the “improper” use of enemy flags, military insignia and uniforms without 78 specifying what is improper and what is not. The Elements of Crimes of the Statute of the International Criminal Court specifies that it is a war crime to use enemy uniforms “in a manner prohibited under the international law of 79 armed conflict while engaged in an attack”. Many military manuals prohibit “improper” use without further explana- 80 tion. The UK Military Manual specifies that: The employment of the national flag, military insignia or uniform of the enemy for the purpose of ruse is not forbidden, but the [Hague Regulations] prohibit their improper use, leaving unsettled what use is proper and what use is not. However, their employment is forbidden during a combat, that is, the opening of fire whilst in the guise of the enemy. But there is no unanimity as to whether the uniform of the enemy may be worn and his flag displayed for the purpose of approach or with- drawal. Use of enemy uniform for the purpose of and in connection with sabotage 81 is in the same category as spying. Belgium’s Law of War Manual provides the following examples of improper use: opening fire or participating in an attack while wearing enemy uniform and opening fire from a captured enemy combat vehicle with its insignia. The manual states that “infiltrating enemy lines in order to create panic to the point that the adversary starts firing on its own soldiers believing that they are disguised enemies or operating behind enemy lines wearing enemy uniform in order to collect information or commit acts of sabotage” is not considered an 82 improper use, although these acts may lead to loss of the right to prisoner- of-war status (see Rule 106). Sweden’s IHL Manual explains that: The prohibition of improper use has been interpreted to mean that enemy uniform may not be used in connection with or during combat, and this has led to great 77 See, e.g., Argentina, Law of War Manual ( ibid. , § 641). 78 Brussels Declaration, Article 13(f) ( ibid. , § 635); Oxford Manual, Article 8(d) ( ibid. , § 636); Hague Regulations, Article 23(f) ( ibid. , § 628). 79 Elements of Crimes for the ICC, Improper use of uniforms of the enemy as a war crime (ICC Statute, Article 8(2)(b)(vii)). 80 See, e.g., the military manuals of Burkina Faso (cited in Vol. II, Ch. 18, § 647), Cameroon ( ibid. , ibid. § 648), Congo ( ibid. , § 654), Germany ( ibid. , § 658), Israel ( ibid. , § 661), , § 651), France ( South Korea ( ibid. , § 665), Lebanon ( ibid. , § 666), Mali ( ibid. , § 668), Morocco ( ibid. , § 669), Nigeria ( , § 674), Russia ( ibid. , § 676) and Senegal ( ibid. , § 677). ibid. 81 United Kingdom, Military Manual ( ibid. , § 682). 82 Belgium, Law of War Manual ( ibid. , § 645).

277 216 deception uncertainty in application. During the 1974–1977 diplomatic conference, certain of the great powers wished to retain the possibility of appearing in enemy uniforms, while most of the smaller States claimed that this possibility should be excluded or minimised. The Conference accepted the view of the smaller States here. The rule in Article 39(2) [of Additional Protocol I that the use of enemy uniforms is improper “when engaging in attacks or in order to shield, favour, protect or impede military operations”] can be interpreted to mean that enemy uniform may be used only as personal protection, for example under extreme weather conditions, and may never be used in connection with any type of military operation. Where prisoners of war make use of enemy uniforms in connection with escape attempts, this may not be 83 seen as an infringement of Article 39. A number of military manuals restate the definition of “improper use” of enemy uniform contained in Additional Protocol I, namely “while engaging in 84 attacks or in order to shield, favour, protect or impede military operations”. Upon ratification of Additional Protocol I, Canada made a reservation to the effect that it would only be bound by the prohibition on using enemy uniforms while engaging in attacks but not in order to shield, favour, protect or impede 86 85 military operations. Several manuals Its LOAC Manual restates this point. 87 similarly limit the prohibition to combat operations. It should also be pointed 88 out that several manuals prohibit the use as such of enemy uniforms. Skorzeny case in 1947, the US General Military Court of the US Zone In the of Germany acquitted the accused of charges of improper use by entering into combat disguised in enemy uniforms. The Court did not consider it improper for German officers to wear enemy uniforms while trying to occupy enemy mil- itary objectives and there was no evidence that they had used their weapons 89 while so disguised. The United States has stated that it does “not support the prohibition in article 39 [of Additional Protocol I] of the use of enemy emblems 90 and uniforms during military operations”. There are several examples of con- flicts since the Second World War in which the wearing of enemy uniforms was 91 practised, including in non-international armed conflicts. It cannot be con- cluded that the wearing of enemy uniforms outside combat would be improper. Several manuals indicate that naval forces may fly enemy colours to deceive the enemy but must display their true colours prior to an actual armed 83 IHL Manual ibid. , § 680). Sweden, ( 84 ibid. , §§ 643–644), Belgium ( ibid. , § 646), New See, e.g., the military manuals of Australia ( Zealand ( ibid. , § 672), South Africa ( ibid. , § 678) and Spain ( ibid. , § 679). 85 Canada, Reservations and statements of understanding made upon ratification of Additional ibid. Protocol I ( , § 631). 86 Canada, LOAC Manual ( ibid. , § 650). 87 ibid. , §§ 641–642), Ecuador ( See, e.g., the military manuals of Argentina ( , § 653), France (“in ibid. combat with a view to dissimulate, favour or impede military operations”) ( , § 657), Nigeria ibid. ibid. ( ibid. , § 683), United States ( ibid. , §§ 685–686) and Yugoslavia , § 673), United Kingdom ( ( ibid. , § 687). 88 ibid. , §§ 655–656), Indonesia ( ibid. , § 660), Italy ( ibid. , See the military manuals of France ( § 663), Madagascar ( ibid. , § 667), Netherlands ( ibid. , §§ 670–671) and Romania ( ibid. , § 675). 89 Skorzeny case ( ibid. , § 719). United States, General Military Court of the US Zone of Germany, 90 United States, Remarks of the Deputy Legal Adviser of the Department of State ( ibid. , § 729). 91 See W. Hays Parks, “Air War and the Law of War” ( ibid. , § 740).

278 Rule 62 217 92 However, there appears to be agreement that military aircraft engagement. may not use enemy markings. While Ecuador’s Naval Manual and the US Naval Handbook restrict this prohibition to combat, Germany’s Military Manual, New Zealand’s Military Manual and the US Air Force Pamphlet state that mili- 93 tary aircraft may not bear enemy markings. Canada’s LOAC Manual considers it an act of perfidy in air warfare if a hostile act is committed while “using false 94 markings on military aircraft such as the markings of . . . enemy aircraft”. The different treatment between ships and aircraft is explained by the fact that it is practically possible to change the flag under which a ship is sailing before engaging in combat, while an aircraft cannot change its marking whilst in the air. Non-international armed conflicts The draft of Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols provided that “when carried out in order to commit or resume hostilities . . . the use in combat of the enemy’s distinctive military emblems” constitutes perfidy. This provi- sion was deleted from the draft during the negotiations in Committee III of the 95 Diplomatic Conference. The prohibition on making use of the flags or mili- tary emblems, insignia or uniforms of adverse parties while engaging in attacks or in order to shield, favour, protect or impede military operations is contained 96 in other instruments pertaining also to non-international armed conflicts. The prohibition of improper use of enemy uniforms and insignia is con- tained in military manuals which are applicable in or have been applied in 97 non-international armed conflicts. Violation of this rule in any armed con- 98 flict is an offence under the legislation of numerous States. The application of this rule in non-international armed conflicts is also supported by official 92 ibid. , §§ 643–644), Belgium ( ibid. , § 645), Canada See, e.g., the military manuals of Australia ( ibid. , § 650), Ecuador ( ibid. , § 653), France ( ibid. , § 657), Germany ( ibid. , § 658), New Zealand ( ibid. ( ibid. , § 686). , § 672) and United States ( 93 Ecuador, Naval Manual ibid. , § 653); Germany, Military Manual ( ibid. , § 658); New Zealand, ( Military Manual ( ibid. , § 672); United States, Air Force Pamphlet ( ibid. , § 685) and Naval Handbook ( , § 686). ibid. 94 Canada, ibid. , § 650). LOAC Manual ( 95 Draft Additional Protocol II, Article 21(1) ( , § 632). ibid. 96 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the ibid. SFRY, para. 6 ( , § 637); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( , § 638). ibid. 97 See, e.g., military manuals of Australia ( ibid. ibid. , § 652), Ecuador ( ibid. , , § 643), Croatia ( § 653), Germany ( ibid. , § 658), Italy ( ibid. , § 664), Lebanon ( ibid. , § 666), Nigeria ( ibid. , § 674), South Africa ( ibid. ibid. , § 687). , § 678) and Yugoslavia ( 98 See, e.g., the legislation of Armenia ( , § 690), Belarus ( ibid. , § 692), Colombia ( ibid. , § 695), ibid. Germany ( ibid. , § 699), Nicaragua ( ibid. , § 707), Poland ( ibid. , § 710), Spain ( ibid. , § 713) and Yugoslavia ( ibid. , § 718); see also the legislation of Italy ( ibid. , §§ 702–703), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 689).

279 218 deception 99 During the Chinese civil war, for statements and other national practice. example, the Chinese Communist Party denounced the use of Red Army uni- forms by Nationalist soldiers alleging they were used while committing acts 100 designed to discredit the Red Army. Rule 63. Use of the flags or military emblems, insignia or uniforms of neutral or other States not party to the conflict is prohibited. Practice Volume II, Chapter 18, Section G. Summary State practice establishes this rule as a norm of customary international law applicable in international armed conflicts and, arguably, also in non- international armed conflicts. International armed conflicts 101 This rule is set forth in Additional Protocol I. It is restated in other instru- 102 ments, in particular the San Remo Manual on Naval Warfare. 103 Violation of The prohibition is contained in numerous military manuals. 104 this rule is an offence under the legislation of many States. This includes the 105 practice of States not party to Additional Protocol I. No official contrary practice was found. No party has claimed the right to use the uniforms of neutral or other States not party to the conflict. 99 ibid. , § 727) and the reported practice of China ( , § 720) See, e.g., the statement of Turkey ( ibid. , § 726). ibid. and Rwanda ( 100 Report on the Practice of China ( ibid. , § 720). 101 Additional Protocol I, Article 39(1) (adopted by consensus) ( , § 742). ibid. 102 ibid. , § 743). San Remo Manual, para. 109 ( 103 ibid. , §§ 744–745), Belgium ( ibid. , § 746), Cameroon See, e.g., the military manuals of Australia ( ( ibid. , § 747), Canada ( ibid. , § 748), Ecuador ( ibid. , § 749), France ( ibid. , § 750), Germany ( ibid. , § 751), Indonesia ( ibid. ibid. , § 753), Netherlands ( ibid. , §§ 754–755), New Zealand , § 752), Italy ( ibid. ibid. ibid. , § 757), Spain ( ibid. , § 758), Sweden ( ( , § 759) and United States , § 756), Russia ( ibid. , §§ 760–761). ( 104 See, e.g., the legislation of Algeria ( ibid. ibid. , § 764), Australia ( ibid. , § 765), , § 762), Armenia ( Belarus ( ibid. , § 766), Czech Republic ( ibid. , § 767), Ireland ( ibid. , § 768), Italy ( ibid. , §§ 769– 770), Nicaragua ( , § 771), Norway ( ibid. , § 772), Philippines ( ibid. , § 773), Poland ( ibid. , ibid. § 774), Slovakia ( ibid. , § 775), Spain ( ibid. , §§ 776–777) and Syria ( ibid. , § 778); see also the draft legislation of Argentina ( , § 763). ibid. 105 See the military manuals of Indonesia ( ibid. , § 752) and United States ( ibid. , §§ 760–761) and the legislation of the Philippines ( ibid. , § 773).

280 Rule 64 219 Non-international armed conflicts Military manuals which are applicable in or have been applied in non- 106 international armed conflicts include this prohibition. Violation of this rule 107 is an offence in any armed conflict under the legislation of several States. While no particular other practice was found with regard to non-international armed conflicts, no contrary practice was found either. No party to a non- international armed conflict was reported to have claimed the right to use the emblems or uniform of a neutral or other State not party to the conflict. It is very likely that the fact of implying involvement of a third State in a non- international armed conflict by wearing its uniform, for example, would be denounced by that State, as well as by the adverse party, as unlawful conduct. It can be argued therefore that there is a legitimate expectation that parties to a non-international armed conflict abide by this rule and that this rule is part of customary international law. Rule 64. Concluding an agreement to suspend combat with the intention of attacking by surprise the enemy relying on that agreement is prohibited. Practice Volume II, Chapter 18, Section H. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The rule is based on respect for good faith (see Rule 66). Violations would involve violations of those rules that are implemented via agreements to suspend com- bat, such as the evacuation of the wounded and sick or civilians (see Rules 109 and 129). International armed conflicts A breach of an agreement to suspend combat constitutes a breach of trust and is a violation of the principle of good faith. The fact that this rule finds its basis in the principle of good faith is expressed in the Lieber Code, which states 106 See, e.g., the military manuals of Australia ( ibid. , § 744), Ecuador ( ibid. , § 749), Germany ( ibid. , § 751) and Italy ( ibid. , § 753). 107 See, e.g., the legislation of Armenia ( ibid. ibid. , § 766), Nicaragua ( ibid. , § 771), , § 764), Belarus ( Philippines ( ibid. , § 773), Poland ( ibid. , § 774) and Spain ( ibid. , § 777); see also the legislation of ibid. Czech Republic ( , § 767), Italy ( ibid. , §§ 769–770) and Slovakia ( ibid. , § 775), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 763).

281 220 deception that “military necessity admits . . . of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered 108 into during the war, or supposed by the modern law of war to exist”. The UK Military Manual emphasises that “good faith, as expressed in the observance 109 of promises, is essential in war”. 110 This rule is set forth in numerous military manuals. Some of these man- 111 uals consider the feigning of a cease-fire “perfidious”. The US Field Man- ual and Air Force Pamphlet, for example, state that a false broadcast to the enemy that an armistice has been agreed upon has been widely recognised to 112 be “treacherous”. The violation of any agreement to suspend combat, whether a truce, armistice, capitulation or other agreement to that effect, is an offence under the 113 legislation of many States. This rule is also supported by official statements, 114 for example, by Iraq in the context of the Iran–Iraq War. Non-international armed conflicts The draft of Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to the adoption of the Additional Protocols provided that “when carried out in order to commit or resume hostilities . . . the feigning of 115 a cease-fire” constitutes perfidy. This provision was deleted from the draft during the negotiations in Committee III of the Diplomatic Conference. This does not mean, however, that such acts would be lawful in non-international armed conflicts. The principle of good faith in the implementation of agree- ments applies equally in international and non-international armed conflicts (see Rule 66). Military manuals which are applicable in or have been applied in non- 116 international armed conflicts include this prohibition. Violation of the rule 108 Lieber Code, Article 15 ( , § 786). ibid. 109 Military Manual ( , § 803). United Kingdom, ibid. 110 See, e.g., the military manuals of Belgium ( , § 787), Burkina Faso ( ibid. , § 788), Cameroon ibid. ibid. , § 789), Canada ( ibid. , § 790), Congo ( ibid. , § 791), France ( ibid. , § 792), Germany ( ( , ibid. § 793), South Korea ( , § 795), Mali ( ibid. , § 796), Morocco ( ibid. , § 797), Netherlands ( ibid. ibid. , § 798), New Zealand ( ibid. , § 799), Nigeria ( ibid. , § 800), Senegal ( ibid. , § 801), Switzerland ( ibid. , § 802), United Kingdom ( ibid. , § 803) and United States ( ibid. , §§ 804–806). 111 See the military manuals of Belgium ( , § 787), Germany ( ibid. , § 793), United Kingdom ibid. ibid. ibid. , §§ 804–805). ( , § 803) and United States ( 112 Field Manual ( ibid. , § 804) and Air Force Pamphlet ( ibid. , § 805). United States, 113 See, e.g., the legislation of Argentina ( , §§ 807–808), Azerbaijan ( ibid. , § 810), Belarus ( ibid. , ibid. § 811), Bolivia ( , § 812), Chile ( ibid. , § 813), Costa Rica ( ibid. , § 814), Ecuador ( ibid. , §§ 815– ibid. 816), El Salvador ( ibid. , § 817), Ethiopia ( ibid. , § 818), Guatemala ( ibid. , § 819), Hungary ( ibid. , § 820), Italy ( ibid. ibid. , § 823), Netherlands ( ibid. , § 824), Nicaragua , §§ 821–822), Mexico ( ibid. ( ibid. , §§ 826–827), Spain ( ibid. , §§ 828–829), Switzerland ( ibid. , § 830) and , § 825), Peru ( Venezuela ( ibid. , §§ 831–832); see also the draft legislation of Argentina ( ibid. , § 809). 114 ibid. , § 835) and Military communiqu e of 1 March Iraq, Letter to the UN Secretary-General ( ́ 1987 ( ibid. , § 836). 115 Draft Additional Protocol II, Article 21(1) ( ibid. , § 785). 116 See, e.g., Germany, Military Manual ( ibid. , § 793).

282 Rule 65 221 117 is an offence in any armed conflict under the legislation of many States. This rule is also supported by official statements and reported practice in the 118 context of non-international armed conflicts. No official contrary practice was found. Violations of this rule have generally been condemned. No party to a non-international armed conflict was reported to have claimed the right to conclude an agreement to suspend combat with the intention of attacking by surprise the enemy relying on that agreement. Rule 65. Killing, injuring or capturing an adversary by resort to perfidy is prohibited. Practice Volume II, Chapter 18, Section I. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts This is a long-standing rule of customary international law already recognised in the Lieber Code, the Brussels Declaration and the Oxford Manual, and codi- 119 120 fied in the Hague Regulations. It is also set forth in Additional Protocol I. Under the Statute of the International Criminal Court, “killing or wounding treacherously individuals belonging to the hostile nation or army” constitutes 121 a war crime in international armed conflicts. The prohibition of perfidy is set forth in a large number of military 122 manuals. Sweden’s IHL Manual considers that the prohibition of perfidy in 117 ibid. See, e.g., the legislation of Azerbaijan ( ibid. , § 811), Costa Rica ( ibid. , , § 810), Belarus ( § 814), Ecuador ( , § 815), El Salvador ( ibid. , § 817), Ethiopia ( ibid. , § 818), Nicaragua ( ibid. , ibid. ibid. ibid. ibid. , § 830) and Venezuela ( § 825), Spain ( , § 831); see also the , § 829), Switzerland ( , §§ 821–822), the ibid. legislation of Argentina ( , § 820) and Italy ( ibid. , § 808), Hungary ( ibid. application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina ( ibid. , § 809). 118 See, e.g., the statements of China ( ibid. ibid. , § 837) and the reported , § 834) and Yugoslavia ( ibid. , § 839) and a State ( , § 840). practice of Yugoslavia ( ibid. 119 Lieber Code, Article 101 ( , § 930); Brussels Declaration, Article 13(b) ( ibid. , § 931); Oxford ibid. ibid. Manual, Article 8(b) ( ibid. , § 926). , § 932); Hague Regulations, Article 23(b) ( 120 Additional Protocol I, Article 37(1) (adopted by consensus) ( ibid. , § 927). 121 ICC Statute, Article 8(2)(b)(xi) ( ibid. , § 929). 122 See, e.g., the military manuals of Argentina ( ibid. , §§ 856–857 and 937), Australia ( ibid. , §§ 858– 859 and 938–939), Belgium ( ibid. ibid. , § 863), Cameroon ( ibid. ,§§864 , §§ 861 and 940), Benin ( and 941), Canada ( , §§ 866 and 942), Colombia ( ibid. , § 867), Croatia ( ibid. , §§ 868–869), ibid. Ecuador ( ibid. , § 870), France ( ibid. , §§ 871–873 and 943), Germany ( ibid. , § 875), Hungary ( ibid. , § 876), Indonesia ( ibid. , § 944), Israel ( ibid. , § 945), Italy ( ibid. , § 947), Kenya ( ibid. , § 948), South

283 222 deception Article 37 of Additional Protocol I is a codification of customary international 123 law. Violation of this rule is an offence under the legislation of numerous 124 States. The prohibition is also supported by official statements and other 125 national practice. Non-international armed conflicts The prohibition of perfidy was included in the draft of Additional Protocol II by Committee III of the Diplomatic Conference leading to the adoption of the Additional Protocols but was deleted at the last moment as part of a pack- 126 age aimed at the adoption of a simplified text. Under the Statute of the International Criminal Court, “killing or wounding treacherously a combatant 127 adversary” constitutes a war crime in non-international armed conflicts. In addition, this rule is contained in other instruments pertaining also to non- 128 international armed conflicts. Military manuals which are applicable in or have been applied in non- 129 international armed conflicts prohibit resort to perfidy. Violations of the rule 130 are an offence in any armed conflict under the legislation of numerous States. ibid. ibid. , §§ 883–885 and 949–950), New Zealand ( ibid. , Korea ( , §§ 880–881), Netherlands ( , §§ 886–887 and 952–953), Romania ( ibid. , § 954), Russia ( ibid. , §§ 888 § 951), Nigeria ( ibid. ibid. ibid. , §§ 891 and 956), Sweden ( ibid. , §§ 893 and 955), South Africa ( , §§ 889–890), Spain ( ibid. , §§ 894 and 958), Togo ( ibid. , § 895), United Kingdom ( ibid. and 957), Switzerland ( , §§ 896 and 959–960), United States ( , §§ 898, 900–901 and 961–962) and Yugoslavia ( ibid. , §§ 902 ibid. and 963). 123 ( ibid. , § 893). Sweden, IHL Manual 124 ibid. , § 964), Bosnia and Herzegovina ( ibid. , § 965), Canada See, e.g., the legislation of Australia ( ibid. , § 967), Congo ( ibid. , § 968), Croatia ( ibid. , § 969), Georgia ( ibid. , § 970), Germany ( ibid. , ( § 971), Ireland ( ibid. ibid. , § 973), Mali ( ibid. , § 974), Netherlands ( ibid. , § 975), , § 972), Italy ( ibid. , § 977), Slovenia ( ibid. New Zealand ( ibid. , § 978), Sweden ( ibid. , § 979), , § 976), Norway ( ibid. , § 981), United States ( ibid. , § 982) and Yugoslavia ( ibid. , § 983); see also United Kingdom ( the draft legislation of Burundi ( ibid. , § 966), El Salvador ( ibid. , § 903) and Trinidad and Tobago ( ibid. , § 980). 125 See, e.g., the statements of the United States ( ibid. , §§ 917 and 988), the practice of the United , §§ 916 and 990) and the reported practice of Iraq ( , §§ 912 and 985). ibid. States ( ibid. 126 Draft Additional Protocol II, Article 21(1) ( ibid. , § 928). 127 , § 929). ICC Statute, Article 8(2)(e)(ix) ( ibid. 128 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the SFRY, para. 6 ( ibid. , §§ 853 and 934); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( , §§ 854 and 935); San Remo Manual, ibid. para. 111 ( , § 855); UNTAET Regulation 2000/15, Section 6(1)(e)(ix) ( ibid. , § 936). ibid. 129 See, e.g., the military manuals of Australia ( , §§ 858 and 939), Benin ( ibid. , § 863), Canada ibid. ibid. ( ibid. , § 867), Croatia ( ibid. , §§ 868–869), Ecuador ( ibid. , § 870), Ger- , § 866), Colombia ( many ( ibid. , § 875), Italy ( ibid. , § 947), Kenya ( ibid. , § 948), South Korea ( ibid. , § 881), Nigeria ( ibid. ibid. , §§ 889–890), Sweden ( ibid. , § 893), Togo ( ibid. , , §§ 886 and 952–953), South Africa ( § 895) and Yugoslavia ( , §§ 902 and 963). ibid. 130 See, e.g., the legislation of Australia ( ibid. , § 964), Bosnia and Herzegovina ( ibid. , § 965), Canada ( ibid. , § 967), Congo ( ibid. , § 968), Croatia ( ibid. , § 969), Georgia ( ibid. , § 970), Germany ( ibid. , § 971), Netherlands ( , § 975), New Zealand ( ibid. , § 976), Slovenia ( ibid. , § 978), Sweden ibid. ( ibid. , § 979), United Kingdom ( ibid. , § 981) and Yugoslavia ( ibid. , § 983); see also the legislation of Italy ( , § 973), the application of which is not excluded in time of non-international ibid. armed conflict, and the draft legislation of Burundi ( ibid. , § 966), El Salvador ( ibid. , § 903) and Trinidad and Tobago ( ibid. , § 980).

284 Rule 65 223 The rule is supported by official statements and other practice pertaining to 131 non-international armed conflicts. No official contrary practice was found with respect to either international or non-international armed conflicts. No party has claimed the right to resort to perfidy. Definition of perfidy Additional Protocol I defines perfidy as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, pro- tection under the rules of international law applicable in armed conflict, with 132 intent to betray that confidence”. This definition is restated in the Elements 133 of Crimes for the International Criminal Court. It is also contained in numer- 134 135 ous military manuals. It is supported by other practice. This practice 136 includes that of States not, or not at the time, party to Additional Protocol I. New Zealand’s Military Manual and Sweden’s IHL Manual point out that the definition of perfidy contained in Article 37 codifies customary interna- 137 tional law. The essence of perfidy is thus the invitation to obtain and then breach the adversary’s confidence, i.e., an abuse of good faith. This require- ment of a specific intent to breach the adversary’s confidence sets perfidy apart from an improper use, making perfidy a more serious violation of interna- tional humanitarian law. Some military manuals translate this rule as fol- lows: it is prohibited to commit a hostile act under the cover of a legal 138 protection. The above definition of perfidy was also included in the draft of Additional Protocol II submitted by the ICRC to the Diplomatic Conference leading to 131 , § 910), Peru ( ibid. , § 913) and Yugoslavia ( ibid. , § 918) ibid. See, e.g., the statements of Chile ( , § 911) and the Philippines ( ibid. , § 914). ibid. and the reported practice of Colombia ( 132 ibid. Additional Protocol I, Article 37(1) (adopted by consensus) ( , § 847). 133 Elements of Crimes for the ICC, Definition of killing or wounding treacherously individuals belonging to the hostile nation or army/a combatant adversary as a war crime (ICC Statute, Article 8(2)(b)(xi) and (e)(ix)). 134 See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 18, § 857), Australia ( ibid. , §§ 858–859), Belgium ( , §§ 860–862), Cameroon ( ibid. , § 864), Canada ( ibid. , § 865), Croatia ibid. ( ibid. , § 869), Ecuador ( ibid. , § 870), France ( ibid. , §§ 871 and 873), Germany ( ibid. , §§ 874–875), Hungary ( ibid. ibid. , § 877), Kenya ( ibid. , § 879), Netherlands ( ibid. , § 883), New , § 876), Israel ( ibid. , § 893), United Kingdom ( ibid. , § 892), Sweden ( ibid. Zealand ( ibid. , § 897) , § 885), Spain ( ibid. , §§ 899 and 901). and United States ( 135 See, e.g., the statements of United States ( ibid. , §§ 916–917) and the reported practice of Iraq ( ibid. , § 912). 136 See, e.g., the military manuals of France ( ibid. , § 871), Israel ( ibid. , § 877), Kenya ( ibid. , § 879), United Kingdom ( ibid. ibid. , §§ 899 and 901), the statements of the , § 897) and United States ( United States ( , §§ 916–917) and the reported practice of Iraq ( ibid. , § 912). ibid. 137 New Zealand, Military Manual ( ibid. , § 885); Sweden, IHL Manual ( ibid. , § 893). 138 See, e.g., the military manuals of Benin ( ibid. , § 863), Canada ( ibid. , § 865) and Togo ( ibid. , § 895).

285 224 deception 139 the adoption of the Additional Protocols but was deleted by Committee III. However, the Preparatory Committee for the Elements of Crimes for the Inter- national Criminal Court concluded that the elements of the crime of treacher- ously killing or wounding were identical in international and non-international 140 armed conflicts. Given that the definition of perfidy provides that the confidence of an adver- sary be based on a situation which requires protection under international humanitarian law, the following acts are considered perfidious if committed with the intent to betray the confidence of the adversary:  simulation of being disabled by injuries or sickness because an enemy who is and may not be attacked but must thus disabled is considered hors de combat 141 be collected and cared for (see Rules 47 and 109–110);  simulation of surrender because an adversary who surrenders is considered hors de combat and may not be attacked but must be captured or released (see 142 Rule 47);  simulation of an intent to negotiate under a flag of truce because a person 143 advancing under a flag of truce must be respected (see Rule 67);  simulation of protected status by using the red cross or red crescent emblem because medical and religious personnel, units and transports displaying the 144 distinctive emblems must be respected and protected (see Chapter 7);  simulation of protected status by using United Nations emblems, signs or uniforms because peacekeeping personnel and humanitarian relief personnel using United Nations emblems, signs or uniforms must be respected, as long as they are entitled to the protection given to civilians, and those emblems, signs or uniforms may not be used without authorisation (see Rules 31, 33 and 145 60);  simulation of protected status by using other protective emblems because the personnel using other protective emblems, including the distinctive emblem of cultural property, must be respected and such emblems may not be used 146 improperly (see Rule 61);  simulation of civilian status because civilians not taking a direct part in hostili- 147 ties must be respected and may not be the object of attack (see Rules 1 and 6);  the wearing of uniforms or the use of emblems of neutral States or other States not party to the conflict because uniforms or emblems of neutral States or of 148 other States not party to the conflict may not be used (see Rule 63). This definition is supported by the practice collected for each particular cat- egory and by the fact that the rules on which the protection is based apply to both international and non-international armed conflicts. 139 Draft Additional Protocol II, Article 21(1) ( ibid. , § 848). 140 ormann, Elements of War Crimes under the Rome Statute of the International Criminal Knut D ̈ Court: Sources and Commentary , Cambridge University Press, 2003, p. 476. 141 See, e.g., the practice (cited in Vol. II, Ch. 18, §§ 1000–1044). 142 143 ibid. , §§ 1045–1129). See, e.g., the practice ( See, e.g., the practice ( ibid. , §§ 1130–1218). 144 145 ibid. , §§ 1219–1324). See, e.g., the practice ( ibid. , §§ 1325–1397). See, e.g., the practice ( 146 147 ibid. , §§ 1398–1451). See, e.g., the practice ( See, e.g., the practice ( ibid. , §§ 1452–1505). 148 See, e.g., the practice ( ibid. , §§ 1506–1545).

286 Rule 65 225 While the Hague Regulations prohibit “to kill or wound treacherously”, Additional Protocol I prohibits “to kill, injure or capture an adversary by resort 149 to perfidy”. The Statute of the International Criminal Court uses the lan- 150 guage of the Hague Regulations. Similarly, some military manuals prohibit killing or injuring by resort to perfidy, while others prohibit killing, injuring or 151 capturing by resort to perfidy. The military manuals of States not party to Additional Protocol I generally do not mention capturing, with the exception of 152 a manual used by Israel. Almost all national legislation making it an offence 153 to violate this rule refers to killing or injuring only. The United States has asserted that it supports “the principle that individual combatants not kill, 154 injure, or capture enemy personnel by resort to perfidy”. On the basis of this practice, it can be argued that killing, injuring or capturing by resort to per- fidy is illegal under customary international law but that only acts that result in serious bodily injury, namely killing or injuring, would constitute a war crime. This argument is also based on the consideration that the capture of an adversary by resort to perfidy nevertheless undermines a protection provided under international humanitarian law even though the consequences may not be grave enough for it to constitute a war crime. It should also be stressed that the capture of an adversary is often accompanied by a threat to kill or injure and that a threat to commit an illegal act is generally considered to be illegal as well. Treacherous attempt upon the life of an enemy The Lieber Code provides that “the common law of war allows even capital pun- ishment for clandestine or treacherous attempts to injure an enemy, because 149 Hague Regulations, Article 23(b) ( , § 926); Additional Protocol I, Article 37(1) (adopted by ibid. consensus) ( , § 927). ibid. 150 ICC Statute, Article 8(2)(b)(xi) and (e)(ix) ( ibid. , § 929). 151 ibid. , § 937), Cameroon ( The military manuals of Argentina ( , § 941), Canada ( ibid. , § 942), ibid. ibid. , § 943), Israel ( ibid. France ( ibid. , §§ 949–950), New Zealand ( ibid. , , § 945), Netherlands ( § 951), Romania ( , § 954) and Spain ( ibid. , § 956) prohibit killing, injuring and capturing by ibid. ibid. , § 940), Indonesia ( ibid. , § 944), resort to perfidy, whereas the military manuals of Belgium ( Italy ( ibid. , § 947), Kenya ( ibid. , § 948), Nigeria ( ibid. , § 952–953), Russia ( ibid. , § 955), Sweden ( ibid. ibid. , § 958), United Kingdom ( ibid. , §§ 959–960), United States , § 957), Switzerland ( ibid. ibid. , § 963) limit this prohibition to killing or injuring. ( , §§ 961–962) and Yugoslavia ( ibid. , § 863), Canada ( ibid. , § 865) and Togo ( ibid. , § 895) The military manuals of Benin ( formulate the prohibition as applicable to “hostile acts committed under the cover of a legal protection” and this would cover killing and injuring but also capturing and possibly other acts. 152 See Israel, ( ibid. , § 945). Law of War Booklet 153 ibid. , § 964), Bosnia and Herzegovina ( ibid. , § 965), Canada See, e.g., the legislation of Australia ( ( ibid. , § 967), Congo ( ibid. , § 968), Croatia ( ibid. , § 969), Georgia ( ibid. , § 970), Germany ( ibid. , § 971), Italy ( ibid. ibid. , § 974), New Zealand ( ibid. , § 976), Slovenia ( ibid. , § 978), , § 973), Mali ( ibid. , § 979), United Kingdom ( ibid. , § 981), United States ( ibid. , § 982) and Yugoslavia Sweden ( ( ibid. , § 983); see also the draft legislation of Burundi ( ibid. , § 966) and Trinidad and Tobago , ( , § 980). The only exceptions are the legislation of Ireland ( ibid. , § 972) and Norway ( ibid. ibid. § 977), which punish any breach of Additional Protocol I. 154 United States, Remarks of the Deputy Legal Adviser of the Department of State ( ibid. , § 988).

287 226 deception 155 they are so dangerous, and it is difficult to guard against them”. The Brus- sels Declaration prohibits “murder by treachery of individuals belonging to the hostile nation or army” and the Oxford Manual prohibits the making of “treach- erous attempts upon the life of an enemy; as for example by keeping assassins 156 in pay”. Under the Hague Regulations, it is prohibited “to kill or wound 157 treacherously individuals belonging to the hostile nation or army”. The use of the term “individuals belonging to the hostile nation or army” clearly covers civilians as well as combatants. The US Air Force Pamphlet states that Article 23(b) of the Hague Regulations has been construed as prohibiting “assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy ‘dead or alive’”, but it specifies that “obviously, it does not pre- clude lawful attacks by lawful combatants on individual soldiers or officers 158 of the enemy”. Several other military manuals also prohibit assassination 159 and the putting of a price on the head of an enemy. New Zealand’s Military Manual defines assassination as “the killing or wounding of a selected individ- 160 ual behind the line of battle by enemy agents or unlawful combatants”. The 161 prohibition of assassination is also supported by official statements. 155 Lieber Code, Article 101 ( ibid. , § 930). 156 ibid. , § 931); Oxford Manual, Article 8 ( ibid. , § 932). Brussels Declaration, Article 13(b) ( 157 Hague Regulations, Article 23(b) ( ibid. , § 926). 158 United States, Air Force Pamphlet ( ibid. , § 962). 159 See, e.g., the military manuals of Australia ( , § 938) (assassination of non-combatants, ibid. putting a price on the head of an enemy individual, any offer for an enemy “dead or alive”), Australia ( , § 939) (assassination of a selected individual, proscription, outlawing, putting ibid. a price on the head of an enemy individual, any offer for an enemy “dead or alive”), Canada ibid. , § 942) (assassination of selected non-combatants, putting a price on the head of an enemy ( individual or offering a bounty for an enemy “dead or alive”), Israel ( , § 946) (attempt on ibid. the lives of enemy leaders (civilian or military), requesting the death of a specific person by dispatching an assassin or by offering an award for his liquidation), New Zealand ( ibid. , § 951) (assassination, proscription, outlawing, putting a price on the head of an enemy individual, any offer for an enemy “dead or alive”), Switzerland ( ibid. , § 958) (place a price on the head of an enemy military or civil leader), United Kingdom ( , § 959) (assassination, proscription, ibid. outlawing, putting a price on the head of an enemy individual, any offer for an enemy “dead or alive”) and Yugoslavia ( ibid. , § 963) (putting a price on someone’s head, whether State or military commander or any other person). 160 New Zealand, Military Manual ( ibid. , § 951). 161 See, e.g., United States, Presidential Executive Order 12333 ( ibid. , § 987) and Memorandum of Law of the Department of the Army: Executive Order 12333 and Assassination ( ibid. , § 989).

288 chapter 19 COMMUNICATION WITH THE ENEMY Note: This chapter addresses communication related to warfare and not polit- ical negotiations undertaken with a view to resolving an armed conflict. Rule 66. Commanders may enter into non-hostile contact through any means of communication. Such contact must be based on good faith. Practice Volume II, Chapter 19, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts Most military manuals stress that the need may arise, for humanitarian or military reasons, for commanders to enter into contact with the adverse party, in particular to conclude local arrangements dealing with such issues as the search for the wounded, sick and dead, the disposal of the dead, exchange of prisoners, evacuation of persons from a besieged area, passage of medical and religious personnel and flights of medical aircraft. At higher levels, agreements may be concluded to establish a hospital or safety zone, a neutralised zone or a 1 demilitarised zone. Some military manuals specify that combatants themselves may not enter 2 into contact with the enemy. The Military Handbook of the Netherlands, 1 See, e.g., the military manuals of Belgium (cited in Vol. II, Ch. 19, § 5), Canada ( ibid. , § 8), Croatia ( ibid. , § 10), Germany ( ibid. , § 12), Hungary ( ibid. , § 13), Italy ( ibid. , § 15), Kenya ( ibid. , § 16), South Korea ( ibid. ibid. , § 19), Netherlands ( ibid. , § 20), New Zealand ( ibid. , , § 17), Madagascar ( § 21), Nigeria ( , § 22), Spain ( ibid. , § 23), Switzerland ( ibid. , § 24), United Kingdom ( ibid. , ibid. §§ 25–26) and United States ( ibid. , § 27). 2 ibid. , § 4), Burkina Faso ( ibid. , § 6), Cameroon ( ibid. , See, e.g., the military manuals of Belgium ( § 7), Congo ( ibid. , § 9), France ( ibid. , § 11), Lebanon ( ibid. , § 18) and Netherlands ( ibid. , § 20). 227

289 228 communication with the enemy for example, states that “only a commander may decide to negotiate with the 3 adverse party”. Practice indicates that communication may be carried out by various means, 4 parlementaires via intermediaries known as but also by telephone and radio. A is a person belonging to a party to the conflict who has been parlementaire authorised to enter into communication with another party to the conflict. The parlementaire is by advancing traditional method of making oneself known as a 5 bearing a white flag. This traditional method has been found to be still valid, as 6 attested by various military manuals. In addition, practice recognises that the parties may appeal to a third party to facilitate communication, in particular protecting powers or an impartial and neutral humanitarian organisation acting as a substitute, in particular the ICRC, but also international organisations and members of peacekeeping forces. Collected practice shows that various insti- tutions and organisations have acted as intermediaries in negotiations both in international and non-international armed conflicts, and that this is generally 7 accepted. Several military manuals emphasise that in any communication with the 8 adversary good faith must be scrupulously observed. This implies that nego- tiators accepted as such by both sides must be respected and that negotiated agreements must be respected or else they constitute unlawful deception. With- out good faith, negotiation on the battlefield is both dangerous and of little use. The parties have to be able to rely on the assurance given by the other side concerning the safety of their negotiators and compliance with what was pacta sunt servanda as an application of the general principle of good agreed ( faith). The principle of good faith applies by definition in both international and non-international armed conflicts and implies that the white flag, which 3 Military Handbook Netherlands, ibid. , § 20). ( 4 ibid. , § 4), Canada ( , § 8), Croatia ( ibid. , § 10), See, e.g., the military manuals of Belgium ( ibid. , § 12), Hungary ( ibid. , § 13), Italy ( ibid. , §§ 14–15), South Korea ( ibid. , § 17), Germany ( ibid. ibid. , § 19), New Zealand ( ibid. , § 21), Spain ( Madagascar ( , § 23), United Kingdom ( ibid. , ibid. § 25) and United States ( , § 27) and the reported practice of Colombia ( ibid. , § 31), Rwanda ibid. ibid. ibid. ( , § 41). , § 36) and Zimbabwe ( 5 parlementaire , see, e.g., Brussels Declaration, Article 43 ( ibid. , § 95), Oxford For a definition of a Manual, Article 27 ( ibid. , § 96) and Hague Regulations, Article 32 ( ibid. , § 94) and the military manuals of Argentina ( ibid. ibid. , §§ 99–101), Canada ( ibid. , § 103), Germany , § 98), Belgium ( ibid. ibid. , § 105), Netherlands ( ibid. , § 106), New Zealand ( ibid. , § 107), Nigeria ( , § 104), Italy ( ibid. , § 108), Spain ( ibid. , §§ 109–110), Switzerland ( ibid. , § 111), United Kingdom ( ibid. , § 112), ( ibid. , § 113) and Yugoslavia ( ibid. , § 114). United States ( 6 See, e.g., the military manuals of Argentina ( , § 98), Belgium ( ibid. , §§ 99–101), Cameroon ibid. ibid. ( ibid. , § 105), Netherlands ( ibid. , § 106), New Zealand ( ibid. , § 107), Nigeria , § 102), Italy ( ( ibid. , § 108), Spain ( ibid. , § 110), Switzerland ( ibid. , § 111), United Kingdom ( ibid. , § 112), United States ( ibid. ibid. , § 114). , § 113) and Yugoslavia ( 7 , , § 12), Madagascar ( ibid. See, e.g., the military manuals of Germany ( ibid. ibid. , § 19), Spain ( § 23) and United States ( ibid. , § 27) and the reported practice of Colombia ( ibid. , § 31), Georgia ( ibid. , § 33), Philippines ( ibid. , § 35), Rwanda ( ibid. , § 36) and two States ( ibid. , §§ 42 and 44). 8 , § 16), ibid. , § 3), Belgium ( ibid. , § 5), Kenya ( ibid. See, e.g., the military manuals of Argentina ( New Zealand ( ibid. , § 21), United Kingdom ( ibid. , §§ 25–26) and United States ( ibid. , § 27).

290 Rule 67 229 9 must be respected in both types of conflict. indicates a desire to communicate, are The detailed rules applicable to the sending and receiving of parlementaires a specific application of the principle of good faith (see Rules 67–69). Refusal to receive parlementaires It is a long-established rule of customary international law that commanders are parlementaires , but it is prohibited to declare beforehand not obliged to receive that no parlementaire will be received. This is stated in the Brussels Declara- 10 It has been restated tion, the Oxford Manual and the Hague Regulations. 11 in many military manuals. Some of these manuals are applicable in, or 12 have been applied in, non-international armed conflicts. No official contrary practice was found. Rule 67. are inviolable. Parlementaires Practice Volume II, Chapter 19, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts This is a long-standing rule of customary international law already recognised in the Brussels Declaration and the Oxford Manual, and codified in the Hague 9 ibid. , §§ 50–51), Belgium ( , § 53), Benin ( ibid. , See, e.g., the military manuals of Australia ( ibid. ibid. ibid. , § 58), Dominican Republic ( ibid. , § 59), Ecuador § 54), Canada ( , §§ 56–57), Colombia ( ibid. , § 60), Italy ( ( , § 65), Kenya ( ibid. , § 66), South Korea ( ibid. , § 67), Madagascar ( ibid. , ibid. § 68), Netherlands ( ibid. , §§ 69–70), New Zealand ( ibid. , § 71), Nigeria ( ibid. , § 72), South Africa ( ibid. , § 74), Togo ( ibid. , § 75), United Kingdom ( ibid. , §§ 76–77), United States ( ibid. , §§ 78– 80) and Yugoslavia ( ibid. ibid. , § 88); the reported , § 81); the practice of the United Kingdom ( ibid. ibid. , § 87). practice of China ( , § 85) and Rwanda ( 10 ibid. , § 125); Oxford Manual, Article 29 ( ibid. , § 126); Hague Brussels Declaration, Article 44 ( ibid. , § 124). Regulations, Article 33 ( 11 See, e.g., the military manuals of Argentina ( ibid. , § 128), Belgium ( ibid. , §§ 129–130), Canada ( ibid. , § 131), Germany ( ibid. , § 132), Italy ( ibid. , § 133), Kenya ( ibid. , § 134), Netherlands ( ibid. , § 135), New Zealand ( ibid. ibid. , § 137), Spain ( ibid. , §§ 138–139), Switzerland , § 136), Nigeria ( ( , § 140), United Kingdom ( ibid. , §§ 141–142), United States ( ibid. , § 143) and Yugoslavia ibid. ( ibid. , § 144). 12 , § 133), Kenya ( ibid. , § 132), Italy ( ibid. See, e.g., the military manuals of Germany ( ibid. , § 134) and Yugoslavia ( ibid. , § 144).

291 230 communication with the enemy 13 The inviolability of is restated in numerous mil- Regulations. parlementaires 14 itary manuals. Some of these manuals are applicable in, or have been applied 15 in, non-international armed conflicts. Several manuals consider that attacks parlementaire against a displaying the white flag of truce constitutes a war 16 crime. is an offence under the parlementaires Breach of the inviolability of 17 legislation of many States. This rule is also supported by other national 18 practice. This includes practice in the context of non-international armed 19 conflicts. No official contrary practice was found. No party has claimed the right to breach the inviolability of parlementaires . Interpretation According to the Brussels Declaration, the Oxford Manual and the Hague Regu- 20 lations, inviolability extends to the persons accompanying the parlementaire . 21 The UK Military Man- This point is also stated in many military manuals. parlementaire ual and LOAC Manual explain that the persons accompanying a 13 ibid. , § 157); Hague ibid. , § 156); Oxford Manual, Article 27 ( Brussels Declaration, Article 43 ( Regulations, Article 32 ( , § 155). ibid. 14 , § 160), Australia ( See, e.g., the military manuals of Argentina ( , §§ 161–162), Belgium ibid. ibid. ibid. , §§ 163–164), Burkina Faso ( ibid. , § 165), Cameroon ( ibid. , § 166), Canada ( ibid. , § 167), ( Congo ( , § 168), Ecuador ( ibid. , § 169), France ( ibid. , §§ 170–171), Germany ( ibid. , § 172), ibid. Italy ( , § 173), Kenya ( ibid. , § 174), South Korea ( ibid. , § 175), Mali ( ibid. , § 176), Netherlands ibid. ibid. , §§ 177–178), New Zealand ( , § 179), Nigeria ( ibid. , § 180), Philippines ( ibid. , §§ 181– ( ibid. ibid. ibid. , § 184), South Africa ( ibid. , § 185), Spain ( ibid. , §§ 186– 182), Russia ( , § 183), Senegal ( ibid. , §§ 188–189), United Kingdom ( ibid. , §§ 190–191), United States ( ibid. , 187), Switzerland ( ibid. §§ 192–195) and Yugoslavia ( , § 196). 15 See, e.g., the military manuals of Australia ( , § 161), Ecuador ( ibid. , § 169), Germany ( ibid. , ibid. ibid. , § 173), Kenya ( § 172), Italy ( , § 174), Philippines ( ibid. , §§ 181–182), South Africa ibid. ( ibid. , § 185) and Yugoslavia ( ibid. , § 196). 16 See, e.g., the military manuals of Australia ( ibid. , §§ 161–162), Canada ( ibid. , § 167), Ecuador ( ibid. ibid. , § 175), New Zealand ( ibid. , § 179), Nigeria ( ibid. , § 180), South , § 169), South Korea ( ibid. , § 185), Switzerland ( , § 189), United Kingdom ( ibid. , § 190) and United States Africa ( ibid. , §§ 192–195). ibid. ( 17 See, e.g., the legislation of Argentina ( ibid. , § 197), Bosnia and Herzegovina ( ibid. , § 199), Chile ibid. , § 200), Croatia ( ibid. , § 201), Dominican Republic ( ibid. , § 202), Ecuador ( ibid. , § 203), El ( ibid. , § 204), Estonia ( ibid. , § 205), Ethiopia ( ibid. , § 206), Hungary ( ibid. , § 207), Italy Salvador ( ibid. ibid. ibid. , §§ 209–210), Nicaragua ( ( , § 211), Peru ( ibid. , § 212), Slovenia , § 208), Mexico ( ( , § 213), Spain ( ibid. , §§ 214–216), Switzerland ( ibid. , § 217), Venezuela ( ibid. , §§ 218–219) ibid. and Yugoslavia ( ibid. , § 220); see also the draft legislation of Argentina ( ibid. , § 198). 18 See, e.g., the practice of the United Kingdom ( , § 225) and the reported practice of China ibid. ibid. ibid. , § 223), Philippines ( ibid. , § 224) and United States ( ibid. , § 227). ( , § 222), Colombia ( 19 ibid. , § 222), Colombia ( ibid. , § 223) and Philippines See, e.g., the reported practice of China ( ibid. ( , § 224). 20 Brussels Declaration, Article 43 ( ibid. , § 156); Oxford Manual, Article 28 ( , § 157); Hague ibid. Regulations, Article 32 ( ibid. , § 155). 21 See, e.g., the military manuals of Argentina ( ibid. , § 160), Belgium ( ibid. , § 163), Canada ( ibid. , § 167), Germany ( , § 172), Italy ( ibid. , § 173), Netherlands ( ibid. , §§ 177–178), New Zealand ibid. ( ibid. , § 179), Nigeria ( ibid. , § 180), Russia ( ibid. , § 183), Spain ( ibid. , § 187), Switzerland ( ibid. , §§ 188–189), United Kingdom ( ibid. , §§ 190–191), United States ( ibid. , § 192) and Yugoslavia ( ibid. , § 196).

292 Rule 68 231 were traditionally a trumpeter, bugler or drummer, a flagbearer and an inter- preter, but that these days a parlementaire may advance in an armoured vehicle flying a white flag, accompanied by a driver, wireless and loudspeaker operator 22 and interpreter. Several military manuals stress that it is not required that there be a com- plete cease-fire in the entire sector in which the parlementaire arrives, but that 23 the party advancing with the white flag may not be fired upon. In addition, a number of military manuals emphasise that it is the duty of the parlementaire to choose a propitious moment to display the white flag of truce and to avoid 24 dangerous zones. Lastly, a number of military manuals specify that the invi- olability of parlementaires and of the persons accompanying them lasts until 25 they have safely returned to friendly territory. Practice indicates that a bearing the white flag of truce has parlementaire parlementaire to advance towards the other party. The party with which the wishes to communicate need not advance. This has also been discussed in relation to the particular circumstances of surrender in connection with an incident that took place during the war in the South Atlantic (see commentary to Rule 47). Rule 68. Commanders may take the necessary precautions to prevent the parlementaire from being prejudicial. presence of a Practice Volume II, Chapter 19, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International and non-international armed conflicts This is a long-standing rule of customary international law already recognised in the Brussels Declaration and the Oxford Manual, and codified in the Hague 22 United Kingdom, Military Manual ( ibid. , § 190) and LOAC Manual ( ibid. , § 191). 23 See, e.g., the military manuals of Canada ( , § 167), Germany ( ibid. , § 172), Italy ( ibid. , ibid. ibid. ibid. § 173), Netherlands ( , § 179), United Kingdom ( ibid. , , §§ 177–178), New Zealand ( ibid. , § 192) and Yugoslavia ( ibid. , § 196). § 190), United States ( 24 See, e.g., the military manuals of New Zealand ( ibid. , § 179), Nigeria ( ibid. , § 180), United Kingdom ( , § 190) and United States ( ibid. , § 192). ibid. 25 See, e.g., the military manuals of Canada ( ibid. , § 167), Germany ( ibid. , § 172), Italy ( ibid. , § 173), Kenya ( ibid. , § 174), New Zealand ( ibid. , § 179) and United Kingdom ( ibid. , §§ 190–191).

293 232 communication with the enemy 26 27 Some of these Regulations. It has been restated in several military manuals. manuals are applicable in, or have been applied in, non-international armed 28 conflicts. No official contrary practice was found. Detention of parlementaires Practice indicates that may be temporarily detained if they parlementaires have accidentally acquired information the disclosure of which to the adver- sary would have adverse consequences on the success of a current or impend- ing operation. The permissibility of temporary detention is provided for in the Brussels Declaration and the Oxford Manual and codified in the 29 The rule is restated in a number of military man- Hague Regulations. 30 uals. Some of these manuals are applicable in, or have been applied 31 in, non-international armed conflicts. No official contrary practice was found. Rule 69. Parlementaires taking advantage of their privileged position to commit an act contrary to international law and detrimental to the adversary lose their inviolability. Practice Volume II, Chapter 19, Section D. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. 26 Brussels Declaration, Article 44 ( ibid. , § 237); Hague ibid. , § 236); Oxford Manual, Article 30 ( , § 235). ibid. Regulations, Article 33 ( 27 See, e.g., the military manuals of Argentina ( , § 239), Belgium ( ibid. , §§ 240–241), Canada ibid. ( ibid. , § 242), Germany ( ibid. , § 243), Italy ( ibid. , § 244), New Zealand ( ibid. , § 245), Nigeria ( ibid. , § 246), Spain ( ibid. , § 247), Switzerland ( ibid. , § 248), United Kingdom ( ibid. , § 249), United States ( ibid. ibid. , § 251). , § 250) and Yugoslavia ( 28 See, e.g., the military manuals of Germany ( , § 243), Italy ( ibid. , § 244) and Yugoslavia ( ibid. , ibid. § 251). 29 ibid. , § 263); Oxford Manual, Article 31 ( Brussels Declaration, Article 44 ( , § 264); Hague ibid. Regulations, Article 33 ( ibid. , § 262). 30 See, e.g., the military manuals of Argentina ( ibid. , § 266), Belgium ( ibid. , §§ 267–268), Canada ( ibid. , § 269), Germany ( ibid. , § 270), Italy ( ibid. , § 271), New Zealand ( ibid. , § 272), Nigeria ( , § 273), Spain ( ibid. , § 274), Switzerland ( ibid. , § 275), United Kingdom ( ibid. , § 276), ibid. United States ( ibid. , § 277) and Yugoslavia ( ibid. , § 278). 31 See, e.g., the military manuals of Germany ( ibid. , § 270), Italy ( ibid. , § 271) and Yugoslavia ( ibid. , § 278).

294 Rule 69 233 International and non-international armed conflicts This is a long-standing rule of customary international law already recognised in the Brussels Declaration and the Oxford Manual, and codified in the Hague 33 32 Regulations. It has been restated in several military manuals. Some of these manuals are applicable in, or have been applied in, non-international armed 34 conflicts. No official contrary practice was found. ’s privileged position cited parlementaire Examples of taking advantage of the in practice include: collecting information; carrying out acts of sabotage; induc- ing soldiers to collaborate in collecting intelligence; instigating soldiers to refuse to do their duty; encouraging soldiers to desert; and organising espionage 35 in the territory of the adverse party. Loss of inviolability means that the can be held prisoner and parlementaire tried in accordance with national legislation. The fundamental guarantees pro- vided for in Chapter 32, in particular fair trial guarantees (see Rule 100), would apply in such a case. 32 ibid. , § 290); Oxford Manual, Article 31 ( Brussels Declaration, Article 45 ( , § 291); Hague ibid. Regulations, Article 34 ( ibid. , § 289). 33 See, e.g., the military manuals of Argentina ( ibid. , § 294), Belgium ( ibid. , § 295), Canada ( ibid. , § 296), Germany ( ibid. ibid. , § 298), New Zealand ( ibid. , § 299), Spain ( ibid. , §§ 300– , § 297), Italy ( , § 304) and ibid. ibid. , § 303), United States ( ibid. 301), Switzerland ( , § 302), United Kingdom ( Yugoslavia ( ibid. , § 305). 34 See, e.g., the military manuals of Germany ( ibid. , § 297), Italy ( ibid. , § 298) and Yugoslavia ( , § 305). ibid. 35 See, e.g., the military manuals of Belgium ( ibid. , § 295), Canada ( ibid. , § 296), Germany ( ibid. , § 297), Spain ( ibid. , §§ 300–301) and Yugoslavia ( ibid. , § 305) and the legislation of Yugoslavia ( ibid. , § 308).

295

296 part iv WEAPONS

297

298 chapter 20 GENERAL PRINCIPLES ON THE USE OF WEAPONS Rule 70. The use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited. Practice Volume II, Chapter 20, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The prohibition of the use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is set forth in a large number of treaties, including early instruments such as the St. Petersburg 1 Declaration and the Hague Declarations and Regulations. The prohibition on the use of chemical and biological weapons in the Geneva Gas Protocol was 2 originally motivated by this rule. Its reaffirmation in recent treaties, in partic- ular Additional Protocol I, the Convention on Certain Conventional Weapons and its Protocol II and Amended Protocol II, the Ottawa Convention banning anti-personnel landmines and the Statute of the International Criminal Court, 4 3 indicates that it remains valid. The rule is also included in other instruments. 1 St. Petersburg Declaration (cited in Vol. II, Ch. 20, § 1); Hague Declaration concerning Asphyxi- ibid. ating Gases ( ibid. , § 3); 1899 Hague , § 2); Hague Declaration concerning Expanding Bullets ( Regulations, Article 23(e) ( ibid. , § 4); 1907 Hague Regulations, Article 23(e) ( ibid. , § 5). 2 See, e.g., the military manuals of Australia ( ibid. ibid. , §§ 55–56) and Germany , §§ 34–35), France ( ibid. ( , § 59). 3 ibid. , § 6); CCW, preamble ( Additional Protocol I, Article 35(2) (adopted by consensus) ( , § 8); ibid. Protocol II to the CCW, Article 6(2) ( ibid. , § 13); Amended Protocol II to the CCW, Article 3(3) ( ibid. , § 15); Ottawa Convention, preamble ( ibid. , § 16); ICC Statute, Article 8(2)(b)(xx) ( ibid. , § 17). 4 See, e.g., Oxford Manual of Naval War, Article 16(2) ( ibid. , § 21); ICTY Statute, Article 3(a) ( ibid. , § 27); San Remo Manual, para. 42(a) ( ibid. , § 28); UN Secretary-General’s Bulletin, Section 6.4 ( ibid. , § 30); UNTAET Regulation No. 2000/15, Section 6(1)(b)(xx) ( ibid. , § 31). 237

299 238 general principles on the use of weapons 5 Sweden’s IHL Manual, in par- Numerous military manuals include the rule. ticular, identifies the prohibition of means and methods of warfare which cause superfluous injury or unnecessary suffering, as set forth in Article 35(2) of Addi- 6 tional Protocol I, as a rule of customary international law. Violations of this 7 rule constitute an offence under the legislation of many States. It has been 8 relied upon in national case-law. Numerous resolutions of the UN General Assembly, as well as some reso- 9 lutions of the OAS General Assembly, recall this rule. The rule has also been 10 recalled by several international conferences. Nuclear In their submissions to the International Court of Justice in the 11 , numerous States referred to the rule. Weapons case In its advisory opinion, the Court affirmed that the prohibition of means and methods of warfare which 5 ibid. ibid. , §§ 34–35), See, e.g., the military manuals of Argentina ( , §§ 32–33), Australia ( Belgium ( ibid. , § 39), Bosnia and Herzegovina ( ibid. , § 40), Burk- ibid. , §§ 36–38), Benin ( ibid. ibid. , §§ 42–43), Canada ( ibid. , §§ 44–45), Colombia ina Faso ( , § 41), Cameroon ( , §§ 46–47), Congo ( , §§ 49–50), Dominican Republic ( , § 48), Croatia ( ibid. ibid. ibid. , ( ibid. , § 52), France ( ibid. , §§ 53–56), Germany ( ibid. , §§ 57–59), Hungary § 51), Ecuador ( ibid. ibid. , § 60), Indonesia ( ibid. , § 61), Israel ( ibid. , §§ 62–63), Italy ( ibid. ( , §§ 64–65), Kenya ( , § 66), South Korea ( ibid. , § 67), Madagascar ( ibid. , § 68), Mali ( ibid. , § 69), Morocco ibid. ibid. , § 70), Netherlands ( , §§ 71–72), New Zealand ( ibid. , § 73), Nigeria ( ibid. , §§ 74– ( ibid. ibid. ibid. , § 78), Senegal ( ibid. , § 79), South Africa ( ibid. , 76), Romania ( , § 77), Russia ( ibid. , § 81), Sweden ( ibid. , § 82), Switzerland ( ibid. , § 83), Togo ( ibid. , § 84), § 80), Spain ( ibid. ibid. United Kingdom ( , §§ 87–93) and Yugoslavia ( ibid. , , §§ 85–86), United States ( § 94). 6 IHL Manual ( ibid. , § 82). Sweden, 7 ibid. , § 96), Belarus ( ibid. , § 97), Canada ( See, e.g., the legislation of Azerbaijan ( , § 99), ibid. Colombia ( ibid. , § 102), Congo ( ibid. , § 103), Georgia ( ibid. , § 104), Ireland ( ibid. , § 105), Italy ( ibid. , § 106), Mali ( ibid. , § 107), New Zealand ( ibid. , § 109), Nicaragua ( ibid. , § 110), Nor- way ( ibid. ibid. , §§ 112–113), United Kingdom ( ibid. , § 115), United States , § 111), Spain ( ibid. , § 116), Venezuela ( , § 117) and Yugoslavia ( ibid. , § 118); see also the draft leg- ( ibid. , § 95), Burundi ( , § 98) and Trinidad and Tobago ( ibid. , ibid. islation of Argentina ( ibid. § 114). 8 , Judgement ( ibid. , § 120). See, e.g., Japan, District Court of Tokyo, Shimoda case 9 UN General Assembly, Res. 3076 (XXVIII) ( , §§ 214 and 217), Res. 3102 (XXVIII) ( ibid. , ibid. ibid. , §§ 217–218), Res. 31/64 ( ibid. § 215), Res. 3255 (XXIX) ( , §§ 217 and 219), Res. 32/152 ( , §§ 217 and 220), Res. 33/70 ( ibid. , § 217), Res. 34/82 ( ibid. , §§ 217 and 222), Res. 35/153 ibid. ibid. ibid. , §§ 217 and 224), Res. 38/66, 39/56, 40/84, ( , §§ 217 and 223), Res. 36/93 and 37/79 ( ibid. , § 224); 41/50, 45/64, 46/40, 47/56, 48/79, 49/79, 50/74, 51/49, 52/42, 53/81 and 54/58 ( ibid. ibid. OAS, General Assembly, Res. 1270 (XXIV-O/94) ( , , § 229) and Res. 1565 (XXVIII-O/98) ( § 230). 10 ibid. , § 231); 26th Inter- See, e.g., 22nd International Conference of the Red Cross, Res. XIV ( national Conference of the Red Cross and Red Crescent, Res. II ( ibid. , § 234); Second Review Conference of States Parties to the CCW, Final Declaration ( ibid. , § 236); African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict, Final Declaration ( , § 237). ibid. 11 See, e.g., the oral pleadings and written statements in the of Australia Nuclear Weapons case ibid. , § 123), Ecuador ( ibid. , § 133), Egypt ( ibid. , § 135), France (implicitly) ( ibid. , § 136), India ( , § 147), Italy ( ibid. ibid. , § 147), Iran ( ibid. , § 144), Indonesia ( ibid. , § 149), Japan ( ibid. , § 151), ( Lesotho ( ibid. , § 153), Marshall Islands ( ibid. , § 155), Mexico ( ibid. , § 159), Netherlands ( ibid. , § 162), New Zealand ( ibid. ibid. , §§ 171–172), Samoa ( ibid. , § 175), Solomon , § 165), Russia ( Islands ( , § 178), Sweden ( ibid. , § 182), United Kingdom ( ibid. , §§ 191–192) and United ibid. States ( ibid. , §§ 202–203); see also the written statements in the Nuclear Weapons (WHO) case , § 174), Solomon Islands ( of Nauru ( , § 161), Rwanda ( ibid. , § 173), Samoa ( ibid. ibid. ibid. , § 177) and Sri Lanka ( ibid. , § 179).

300 Rule 70 239 are of a nature to cause superfluous injury or unnecessary suffering was one of 12 the “cardinal principles” of international humanitarian law. Non-international armed conflicts The prohibition of the use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering was included by consensus in the draft of Additional Protocol II but was dropped at the last moment without debate as part of a package aimed at the adoption of a simpli- 13 fied text. There was no indication, however, of any objection to the rule as such in this context. When adopting the Ottawa Convention banning anti-personnel landmines and the Convention on Certain Conventional Weapons, applicable to non- international armed conflict pursuant to an amendment to Article 1 in 2001, , on the prohibition inter alia States declared that they were basing themselves, of means and methods of warfare which are of a nature to cause superflu- 14 ous injury or unnecessary suffering. Amended Protocol II to the Convention on Certain Conventional Weapons, also applicable to non-international armed conflicts, prohibits “the use of any mine, booby-trap or other device designed 15 or of a nature to cause superfluous injury or unnecessary suffering”. Military manuals which are applicable in or have been applied in non- 16 international armed conflicts also include the rule. It is also contained in the 18 17 legislation of several States. It has been relied upon in national case-law. During the conflicts in the former Yugoslavia, the prohibition of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering was included in the agreements relating to what were 19 then regarded as non-international armed conflicts. In addition, in 1991, Yugoslavia denounced Slovenia’s alleged use of “soft-nosed bullets” because 20 they caused “disproportionate and needless injury”. 12 , Advisory Opinion ( ibid. ICJ, Nuclear Weapons case , § 238). 13 Draft Additional Protocol II, Article 20(2) ( ibid. , § 7). 14 ibid. Ottawa Convention, preamble ( ibid. , § 8). , § 16); CCW, preamble ( 15 Amended Protocol II to the CCW, Article 3(3) ( ibid. , § 15). 16 See, e.g., the military manuals of Australia ( ibid. , § 34), Benin ( ibid. , § 39), Bosnia and Herze- govina ( ibid. , § 40), Canada ( ibid. , § 45), Colombia ( ibid. , §§ 46–47), Croatia ( ibid. , §§ 49–50), Ecuador ( ibid. ibid. , §§ 57–59), Italy ( ibid. , §§ 64–65), Kenya ( ibid. , § 66), South , § 52), Germany ( ibid. ibid. ibid. , § 68), Nigeria ( ibid. , §§ 74 and 76), South Africa ( Korea ( , , § 67), Madagascar ( ibid. ibid. § 80), Togo ( , § 94). , § 84) and Yugoslavia ( 17 See, e.g., the legislation of Azerbaijan ( , § 96), Belarus ( ibid. , § 97), Colombia ( ibid. , § 102), ibid. Nicaragua ( ibid. , § 110), Spain ( ibid. , § 113), Venezuela ( ibid. , § 117) and Yugoslavia ( ibid. , § 118); see also the legislation of Italy ( ibid. , § 106), the application of which is not excluded in time of ibid. , § 95). non-international armed conflict, and the draft legislation of Argentina ( 18 Military Junta case , Judgement ( ibid. , § 119). See, e.g., Argentina, National Court of Appeals, 19 Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the SFRY, para. 6 ( , § 25); Agreement on the Application of International ibid. Humanitarian Law between the Parties to the Conflict in Bosnia and Herzegovina, para. 2.5 ( ibid. , § 26). 20 Yugoslavia, Ministry of Defence, Examples of violations of the rules of international law com- mitted by the so-called armed forces of Slovenia ( ibid. , § 209).

301 240 general principles on the use of weapons Practice is in conformity with the rule’s applicability in both interna- tional and non-international conflicts, as States generally do not have a dif- ferent set of military weapons for international and non-international armed 21 conflicts. No official contrary practice was found with respect to either international or non-international armed conflict. No State has indicated that it may use means or methods of warfare causing unnecessary suffering in any type of armed conflict. Practice shows that parties to a conflict abstain from using in non-international armed conflicts weapons prohibited in international armed ́ Tadi in 1995, the International Criminal Tribunal for the conflicts. In the c case Former Yugoslavia stated that: Indeed, elementary considerations of humanity and common sense make it pre- posterous that the use by States of weapons prohibited in armed conflicts between themselves be allowed when States try to put down rebellion by their own nationals on their own territory. What is inhumane, and consequently proscribed, in inter- 22 national wars cannot but be inhumane and inadmissible in civil strife. Definition of means of warfare which are of a nature to cause superfluous injury or unnecessary suffering The prohibition of means of warfare which are of a nature to cause superfluous injury or unnecessary suffering refers to the effect of a weapon on combatants. Although there is general agreement on the existence of the rule, views differ on how it can actually be determined that a weapon causes superfluous injury or unnecessary suffering. States generally agree that suffering that has no military purpose violates this rule. Many States point out that the rule requires that a balance be struck between military necessity, on the one hand, and the expected injury or suffering inflicted on a person, on the other hand, and that excessive injury or suffering, i.e., that which is out of proportion to the military advantage 23 sought, therefore violates the rule. Some States also refer to the availability of alternative means as an element that has to go into the assessment of whether 24 a weapon causes unnecessary suffering or superfluous injury. 21 The use of riot-control agents and expanding bullets by police forces outside situations of armed conflict is addressed in the commentary to Rules 75 and 77. 22 ́ ˇ The Prosecutor v. Du sko Tadi c aka “Dule” , Decision on the Defence Motion for Inter- ICTY, locutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, Case No. IT-94-1-AR72, § 119. 23 ibid. , See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 20, § 35), Canada ( §§ 44–45), Ecuador ( , § 52), France ( ibid. , §§ 54–56), Germany ( ibid. , § 58), New Zealand ibid. ( ibid. , § 73), South Africa ( ibid. , § 80), United States ( ibid. , §§ 88–89 and 93) and Yugoslavia ( , § 94); the legislation of Belarus ( ibid. , § 97); the statements of India ( ibid. , § 144), Nether- ibid. lands ( ibid. , § 162), United Kingdom ( ibid. , §§ 191–192) and United States ( ibid. , §§ 194, 202 and 206). 24 See the military manual of the United States ( ibid. , § 88) and the statement of the United Kingdom ( ibid. , § 191).

302 Rule 70 241 Nuclear Weapons case , the International Court In its advisory opinion in the of Justice defined unnecessary suffering as “a harm greater than that unavoid- 25 able to achieve legitimate military objectives”. A relevant factor in establishing whether a weapon would cause superflu- ous injury or unnecessary suffering is the inevitability of serious permanent disability. The US Air Force Pamphlet, for example, lists as one of the bases 26 for the prohibition of poison the “inevitability of . . . permanent disability”. The rule prohibiting the targeting of the eyes of soldiers with lasers, as laid down in Protocol IV to the Convention on Certain Conventional Weapons (see Rule 86), was inspired by the consideration that deliberately causing perma- nent blindness in this fashion amounted to the infliction of superfluous injury 27 or unnecessary suffering. When adopting the Ottawa Convention banning anti-personnel landmines, States were basing themselves, in part, on the prohi- bition of means of warfare which are of a nature to cause superfluous injury or 28 unnecessary suffering. The serious disabilities that are frequently the result of the use of incendiary weapons prompted many States to propose a ban on their use against personnel (see commentary to Rule 85). A related issue is the use of weapons that render death inevitable. The pream- ble to the St. Petersburg Declaration states that the use of such weapons “would be contrary to the laws of humanity”, and it was this consideration that led to 29 the prohibition of exploding bullets by the Declaration. The US Air Force Pamphlet, for example, states that “the long-standing customary prohibition against poison” is based, in part, on “the inevitability of death” and that inter- national law has condemned “dum-dum” bullets because of “types of injuries 30 and inevitability of death”. Several military manuals and official statements 31 state that weapons that render death inevitable are prohibited. Definition of methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering The prohibition of methods of warfare which are of a nature to cause super- fluous injury or unnecessary suffering was first introduced in Additional 25 ICJ, , Advisory Opinion ( ibid. , § 238). Nuclear Weapons case 26 Air Force Pamphlet ( ibid. , § 88). United States, 27 See, e.g., Sweden, Declaration made upon acceptance of Protocol IV to the CCW ( ibid. , § 14) ibid. and the military manuals of France ( , §§ 55–56). 28 Ottawa Convention, preamble ( ibid. , § 16). 29 ibid. , § 1). St. Petersburg Declaration, preamble ( 30 United States, Air Force Pamphlet ( ibid. , § 88); see also Ecuador, Naval Manual ( ibid. , § 52) and United States, Air Force Commander’s Handbook ( ibid. , § 89) and Naval Handbook ( ibid. , § 93). 31 See, e.g., the military manual of Belgium ( ibid. , § 36), Ecuador ( ibid. , § 52) and United States ( ibid. , § 93) and the statements of Egypt ( ibid. , § 135), India ( ibid. , § 144), Russia ( ibid. , §§ 171– 172) and Solomon Islands ( ibid. , § 178); see also the statements of Australia ( ibid. , § 121) and New Zealand ( ibid. , § 164).

303 242 general principles on the use of weapons 32 When adopting the Convention on Certain Conventional Weapons Protocol I. and the Ottawa Convention banning anti-personnel landmines, States were basing themselves on the prohibition of “weapons, projectiles and material methods and of warfare of a nature to cause superfluous injury or unneces- 33 sary suffering” (emphasis added). The Statute of the International Criminal Court also includes the use of “ of warfare which are of nature to cause methods 34 superfluous injury or unnecessary suffering” (emphasis added) as a war crime. Numerous States have included the prohibition of methods of warfare that cause superfluous injury or unnecessary suffering in their military manuals and 35 36 legislation. It is also referred to in official statements and other practice. This practice includes that of States not, or not at the time, party to Additional 37 Protocol I. However, States articulating this rule do not give any examples of methods of warfare that would be prohibited by virtue of this rule. Interpretation Although the existence of the prohibition of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is not contested, views differ as to whether the rule itself renders a weapon illegal or whether a weapon is illegal only if a specific treaty or customary rule prohibits its use. While most military manuals prohibit weapons that cause unnecessary suf- 38 fering as such, some indicate that the weapons covered by this prohibition 32 Additional Protocol I, Article 35(2) (adopted by consensus) ( ibid. , § 6). 33 CCW, preamble ( ibid. , § 16). ibid. , § 8); Ottawa Convention, preamble ( 34 ICC Statute, Article 8(2)(b)(xx) ( ibid. , § 17). 35 ibid. , § 33), Australia ( ibid. See, e.g., the military manuals of Argentina ( , §§ 34–35), Belgium ( , § 36), Benin ( ibid. , § 39), Colombia ( ibid. , § 46), Croatia ( ibid. , § 49), Dominican Republic ibid. ibid. ibid. , § 52), Germany ( ibid. , §§ 57–59), Hungary ( ibid. , § 60), Italy ( ibid. , ( , § 51), Ecuador ( ibid. , § 66), Netherlands ( ibid. , § 71), Spain ( ibid. , § 81), Sweden ( ibid. , § 82), Togo § 64), Kenya ( ibid. ibid. ( , §§ 88 and 93) and the legislation of Azerbaijan ( ibid. , § 96), , § 84) and United States ( ibid. , § 102), Congo ( ibid. , § 99), Colombia ( ibid. Belarus ( ibid. , § 103), Georgia , § 97), Canada ( ( , § 104), Ireland ( ibid. , § 105), Mali ( ibid. , § 107), New Zealand ( ibid. , § 109), Nicaragua ibid. ( ibid. , § 110), Norway ( ibid. , § 111), Spain ( ibid. , §§ 112–113), United Kingdom ( ibid. , § 115) and Yugoslavia ( ibid. ibid. , § 95), Burundi ( ibid. , , § 118) ); see also the draft legislation of Argentina ( ibid. , § 114). § 98) and Trinidad and Tobago ( 36 ibid. ibid. , § 135), France ( ibid. , § 139), , § 123), Egypt ( See, e.g., the statements of Australia ( , § 140), Iran ( ibid. , § 147), Mexico ( ibid. , § 159), Netherlands Federal Republic of Germany ( ibid. ibid. , § 162), New Zealand ( ( , § 165), Sri Lanka ( ibid. , § 179), United Kingdom ( ibid. , § 192), ibid. United States ( , §§ 196 and 198), Yugoslavia ( ibid. , § 208) and Zimbabwe ( ibid. , § 210) and ibid. ibid. , § 138). the practice of France ( 37 See, e.g., the military manuals of the United States ( ibid. , §§ 88 and 93), the legislation of Azerbaijan ( ibid. , § 96), the statements of Iran ( ibid. , § 147), Sri Lanka ( ibid. , § 179), United Kingdom ( ibid. ibid. , § 196) and the practice of France ( ibid. , § 138). , § 192) and United States ( 38 See, e.g., the military manuals of Argentina ( , § 33), Australia ( ibid. , §§ 34–35), Bel- ibid. gium ( , §§ 36–38), Benin ( ibid. , § 39), Bosnia and Herzegovina ( ibid. , § 40), Burk- ibid. ina Faso ( ibid. , § 41), Cameroon ( ibid. , §§ 42–43), Canada ( ibid. , §§ 44–45), Colombia ( , §§ 46–47), Congo ( ibid. , § 48), Croatia ( ibid. , §§ 49–50), Dominican Republic ( ibid. , ibid. § 51), Ecuador ( ibid. , § 52), France ( ibid. , §§ 53–56), Germany ( ibid. , §§ 57–59), Hun- gary ( ibid. , § 60), Indonesia ( ibid. , § 61), Israel ( ibid. , §§ 62–63), Italy ( ibid. , §§ 64–65),

304 Rule 70 243 must be determined by the practice of States to refrain from using certain 39 weapons in recognition that they cause unnecessary suffering. Nuclear In their submissions to the International Court of Justice in the Weapons case , France and Russia stated that a weapon can only be pro- hibited by virtue of this rule if States choose to prohibit the weapon by 40 treaty. Most other States, however, did not express such a requirement and assessed the legality of the effects of nuclear weapons on the basis of the rule 41 itself. In its advisory opinion in the Nuclear Weapons case , the International Court of Justice analysed the legality of the effects of nuclear weapons on the basis of the rule itself and independent of treaty law, as did the judges in their individual 42 opinions. Examples The following weapons have been cited in practice as causing unnecessary suffering if used in certain or all contexts: lances or spears with a barbed 43 44 45 46 head; explosive bullets; serrated-edged bayonets; expanding bullets; , § 66), South Korea ( ibid. , § 67), Madagascar ( Kenya ( , § 68), Mali ( ibid. , § 69), Morocco ibid. ibid. ibid. , § 70), Netherlands ( ibid. , §§ 71–72), New Zealand ( ibid. , § 73), Nigeria ( ibid. ( ,§§74– 76), Romania ( , § 77), Russia ( ibid. , § 78), Senegal ( ibid. , § 79), South Africa ( ibid. , § 80), ibid. ibid. ibid. , § 82), Switzerland ( ibid. , § 83), Togo ( ibid. , § 84), United Spain ( , § 81), Sweden ( ibid. , §§ 85–86), United States ( ibid. , §§ 89–90 and 92–93) and Yugoslavia ( ibid. , Kingdom ( § 94). 39 ibid. , § 32) and the United States ( ibid. , §§ 87–88 See, e.g., the military manuals of Argentina ( and 91). 40 Nuclear Weapons case of France ( ibid. , See the oral pleadings and written statements in the § 136) and Russia ( , §§ 171–172). ibid. 41 See, e.g., the oral pleadings and written statements in the Nuclear Weapons case of Ecuador ( ibid. , § 133), Iran ( ibid. , § 147), Japan ( ibid. , § 151), Lesotho ( ibid. , § 153), Marshall Islands ( ibid. ibid. , § 159), Nauru ( ibid. , § 161), Netherlands ( ibid. , § 162), , § 155), Mexico ( ibid. , § 165), Samoa ( , § 175), Sweden ( ibid. , § 182), United Kingdom New Zealand ( ibid. , §§ 191–192) and United States ( ibid. , § 202); see also the written statements sub- ( ibid. Nuclear Weapons (WHO) case by Samoa ( ibid. , § 174) and Sri Lanka ( ibid. , mitted in the § 179). 42 Nuclear Weapons case , Advisory Opinion ( ibid. , § 238), including the judges’ individual ICJ, ibid. opinions ( , §§ 239–245). 43 ibid. , § 73), South Africa ( ibid. See, e.g., the military manuals of New Zealand ( , § 80), United Kingdom ( ibid. , § 85) and United States ( ibid. , § 87); see also UN Secretariat, Existing rules of international law concerning the prohibition or restriction of use of specific weapons, Survey ( ibid. , § 227). 44 See, e.g., the military manuals of the Netherlands ( , §§ 71–72). ibid. 45 See, e.g., the military manuals of Australia ( , § 34) (“hollow point weapons”), Ecuador ( ibid. , ibid. § 52), France ( , §§ 55–56), Germany ( ibid. , §§ 57–59), Netherlands ( ibid. , §§ 71–72), Russia ibid. ( ibid. , § 78), South Africa ( ibid. , 80), United States ( ibid. , § 91) and Yugoslavia ( ibid. , § 94); see also the military manuals of New Zealand ( , § 73), United Kingdom ( ibid. , 85) and United ibid. States ( ibid. , § 87), which prohibit “irregularly shaped bullets”; see also UN Secretariat, Existing rules of international law concerning the prohibition or restriction of use of specific weapons, Survey ( ibid. , § 227). 46 See, e.g., the military manuals of Germany ( ibid. , § 58) and Russia ( ibid. , § 78); see also UN Secretariat, Existing rules of international law concerning the prohibition or restriction of use of specific weapons, Survey ( ibid. , § 227).

305 244 general principles on the use of weapons poison and poisoned weapons, including projectiles smeared with substances 47 48 that inflame wounds; biological and chemical weapons; weapons that pri- marily injure by fragments not detectable by X-ray, including projectiles filled 50 51 49 with broken glass; torpe- anti-personnel landmines; certain booby-traps; 52 53 does without self-destruction mechanisms; incendiary weapons; blinding 54 55 laser weapons; and nuclear weapons. There is insufficient consensus con- cerning all of these examples to conclude that, under customary international law, they all violate the rule prohibiting unnecessary suffering. However, there is agreement that some of them are prohibited and they are discussed in subse- quent chapters. Rule 71. The use of weapons which are by nature indiscriminate is prohibited. Practice Volume II, Chapter 20, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. Weapons that are by nature indiscriminate are those that cannot be directed at a military objective or whose effects cannot be limited as required by interna- tional humanitarian law. The prohibition of such weapons is also supported by the general prohibition of indiscriminate attacks (see Rules 11–12). 47 See, e.g., the military manuals of Ecuador ( , § 52), Netherlands ( ibid. , § 72), New ibid. ibid. , § 73), South Africa ( , § 80), United Kingdom ( ibid. , § 85) and United Zealand ( ibid. , §§ 87, 89, 91 and 93); see also UN Secretariat, Existing rules of interna- States ( ibid. tional law concerning the prohibition or restriction of use of specific weapons, Survey ( ibid. , § 227). 48 See, e.g., the military manuals of Australia ( , §§ 34–35), France ( ibid. , §§ 55–56) and Germany ibid. ibid. ( , § 59). 49 ibid. See, e.g., the military manuals of Australia ( ibid. , § 52), France ( ibid. , §§ 55– , § 34), Ecuador ( 56), Germany ( ibid. , § 59), Netherlands ( ibid. , §§ 71–72), New Zealand ( ibid. , § 73), South Africa ( ibid. ibid. , § 85) and United States ( ibid. , §§ 87, 89, 91 and 93); see also , § 80), United Kingdom ( UN Secretariat, Existing rules of international law concerning the prohibition or restriction of use of specific weapons, Survey ( ibid. , § 227). 50 ibid. See, e.g., the military manuals of Germany ( ibid. , § 72). , § 59) and Netherlands ( 51 ibid. , §§ 55–56). See, e.g., the military manuals of France ( 52 See, e.g., the military manuals of France ( , §§ 55–56). ibid. 53 See, e.g., the statements of Colombia ( , §§ 130–131), Mauritania ( ibid. , § 156), Mexico ibid. ibid. ( ibid. , § 166) and the reported practice of Zimbabwe ( ibid. , § 211); , §§ 157–158) and Norway ( see also UN Secretariat, Existing rules of international law concerning the prohibition or restric- tion of use of specific weapons, Survey ( ibid. , § 227). 54 See, e.g., Sweden, Declaration made upon acceptance of Protocol IV to the CCW ( , § 14) ibid. ibid. and the military manuals of France ( , §§ 55–56). 55 See, e.g., the oral pleadings and written statements in the Nuclear Weapons case of Ecuador ( ibid. , § 133), Egypt ( ibid. , § 135), India ( ibid. , § 144), Iran ( ibid. , § 147), Japan ( ibid. , § 151), , Lesotho ( , § 153), Marshall Islands ( ibid. , § 155), Sweden ( ibid. , § 182) and Zimbabwe ( ibid. ibid. § 210) and the written statements in the Nuclear Weapons (WHO) case of Samoa ( ibid. , § 174) and Solomon Islands ( ibid. , § 177).

306 Rule 71 245 International armed conflicts Additional Protocol I prohibits the use of weapons which are “of a nature to strike military objectives and civilians or civilian objects without distinc- 56 tion”. This prohibition was reaffirmed in the Statute of the International 58 57 Criminal Court. It has also been included in other instruments. 59 Violations of this rule This rule is set forth in many military manuals. 60 constitute an offence under the legislation of several States. This rule is also 61 supported by official statements and reported practice. This practice includes 62 that of States not, or not at the time, party to Additional Protocol I. The prohibition of weapons which are by nature indiscriminate is also recalled in numerous resolutions adopted by the UN General Assembly, as 63 well as in some resolutions adopted by the OAS General Assembly. The rule 64 has also been recalled by several international conferences. 56 Additional Protocol I, Article 51(4) (cited in Vol. II, Ch. 3, §§ 206 and 251). 57 ICC Statute, Article 8(2)(b)(xx) (cited in Vol. II, Ch. 20, § 265). 58 See, e.g., San Remo Manual, para. 42(b) ( ibid. , § 268); UNTAET Regulation No. 2000/15, Section ibid. 6(1)(b)(xx) ( , § 269). 59 ibid. ibid. , § 272), Canada See, e.g., the military manuals of Australia ( , §§ 270–271), Belgium ( , § 273), Colombia ( ibid. , § 274), Ecuador ( ibid. , § 275), France ( ibid. ( ibid. , §§ 276–277), Germany ibid. , §§ 278–279), Israel ( ibid. , § 280), South Korea ( ibid. , § 281), New Zealand ( ibid. , § 282), ( ibid. , § 283), Russia ( ibid. , § 284), Sweden ( ibid. , § 285), Switzerland ( Nigeria ( , § 286), ibid. United States ( , §§ 287–289) and Yugoslavia ( ibid. , § 290). ibid. 60 See, e.g., the legislation of Canada ( ibid. , § 293), Georgia ( ibid. , § 294), Mali ibid. , § 292), Congo ( , § 295), New Zealand ( , § 296) and United Kingdom ( ibid. , § 298); see also the draft ibid. ibid. ( , § 291) and Trinidad and Tobago ( ibid. , § 297). legislation of Burundi ( ibid. 61 ibid. , §§ 300–301), Canada ( ibid. , §§ 302–304), China ( ibid. , See, e.g., the statements of Australia ( ibid. , § 306), Ecuador ( ibid. § 305), Cyprus ( ibid. , §§ 309–311), France ( ibid. , , §§ 307–308), Egypt ( §§ 312–313), Federal Republic of Germany ( , § 314), Holy See ( ibid. , § 315), Iran ( ibid. , ibid. ibid. , § 323), Lesotho ( ibid. , § 322), Japan ( ibid. §§ 317–318), Israel ( ibid. , § 327), , § 320), Italy ( Malaysia ( , § 328), Marshall Islands ( ibid. , §§ 329–330), Mexico ( ibid. , § 331), Nauru ( ibid. , ibid. § 332), Netherlands ( ibid. , §§ 333–335), New Zealand ( ibid. , § 336), Nigeria ( ibid. , § 337), Peru ( ibid. ibid. , § 340), Romania ( ibid. , § 341), Russia ( ibid. , §§ 342–344), Rwanda , § 339), Poland ( ibid. , § 345), Solomon Islands ( , §§ 347–348), Sri Lanka ( ibid. , § 349), Sweden ( ibid. , § 350), ( ibid. ibid. ibid. , § 352), Turkey ( ibid. , § 353), USSR ( ibid. , § 354), Switzerland ( , § 351), South Africa ( ibid. , §§ 355–358), United States ( ibid. , §§ 359–365), Vietnam ( ibid. , § 367) and United Kingdom ( ibid. ibid. Zimbabwe ( , § 316), Iran ( ibid. , § 319), Israel , § 368) and the reported practice of India ( ibid. ibid. , § 324), South Korea ( ibid. , § 325), Kuwait ( ibid. , § 326), Pakistan ( , § 321), Jordan ( ibid. , § 338), Rwanda ( ( , § 346) and United States ( ibid. , § 366). ibid. 62 See, e.g., the military manuals of France ( ibid. , § 276) and Israel ( ibid. , § 280), the statements of Cyprus ( ibid. , § 306), Egypt ( ibid. , § 309), Holy See ( ibid. , § 315), Israel ( ibid. , § 320), Poland ( ibid. ibid. , § 341), Turkey ( ibid. , § 353), USSR ( ibid. , § 354), United Kingdom , § 340), Romania ( ibid. , § 367), the practice of ibid. , §§ 359–364) and Vietnam ( ibid. ( , §§ 355–357), United States ( ibid. , § 316), Iran ( ibid. the United States ( ibid. , § 319), , § 366) and the reported practice of India ( ibid. , § 321) and Pakistan ( ibid. , § 338). Israel ( 63 See UN General Assembly, Res. 1653 (XVI) ( ibid. , § 369), Res. 3032 (XXVII) ( ibid. , § 370), Res. 3076 (XXVIII) ( ibid. ibid. , §§ 371–372), Res. 31/64 ( ibid. , §§ 371 , §§ 371–373), Res. 3255 A (XXIX) ( ibid. , § 371), Res. 34/82 ( ibid. , §§ 371 and 375), Res. 35/153 and and 374), Res. 32/15 and 33/70 ( 36/93 ( ibid. , §§ 371 and 376–377), Res. 37/79 ( ibid. , §§ 371 and 376–377) and Res. 38/66, 39/56, 40/84, 41/50, 42/30, 43/67, 45/64, 46/40, 47/56, 48/79, 49/79, 50/74, 51/49, 52/42, 53/81 and ibid. , §§ 376–377); OAS, General Assembly, Res. 1270 (XXIV-O/94) and 1335 (XXV-O/95) 54/58 ( ( ibid. , § 381) and Res. 1565 (XXVIII-O/98) ( ibid. , § 382). 64 See, e.g., 22nd International Conference of the Red Cross, Res. XIV ( ibid. , § 383); 24th Interna- tional Conference of the Red Cross, Res. XIII ( ibid. , § 383); 26th International Conference of the

307 246 general principles on the use of weapons Nuclear In their submissions to the International Court of Justice in the Weapons case , several States not at the time party to Additional Protocol I 65 referred to the prohibition of indiscriminate weapons. In its advisory opinion, the Court affirmed that this prohibition was one of the “cardinal principles” 66 of international humanitarian law. Non-international armed conflicts By virtue of the customary rule that civilians must not be made the object of attack (see Rule 1), weapons that are by nature indiscriminate are also prohib- ited in non-international armed conflicts. This was the reasoning behind the prohibition of certain types of mines and booby-traps in Amended Protocol II to the Convention on Certain Conventional Weapons, which is applicable in 67 non-international armed conflicts. Similarly, the Ottawa Convention, which prohibits the use of anti-personnel landmines in all armed conflicts, is based, in part, on the principle that a distinction must be made between civilians and 68 combatants. The prohibition of weapons which are by nature indiscriminate is also set forth in several military manuals which are applicable in or have been applied in 69 non-international armed conflicts. It is also supported by a number of official 70 statements and reported practice. Practice is in conformity with the rule’s applicability in both international and non-international conflicts, as States generally do not have a different set of military weapons for international and non-international armed conflicts. Nuclear In their submissions to the International Court of Justice in the , many States considered that the prohibition of indiscriminate Weapons case weapons was based on the principle that a distinction must be made between , § 386); Second Review Conference of States Parties to Red Cross and Red Crescent, Res. II ( ibid. ibid. , § 387); African Parliamentary Conference on International the CCW, Final Declaration ( Humanitarian Law for the Protection of Civilians during Armed Conflict, Final Declaration , § 388). ibid. ( 65 Nuclear Weapons case See, e.g., the oral pleadings and written statements in the ibid. , of Iran ( §§ 317–318), Japan ( , § 323), Marshall Islands ( ibid. , §§ 329–330), Nauru ( ibid. ibid. , § 332), United Kingdom ( ibid. , § 358) and United States ( ibid. , § 364); see also the written statements in the Nuclear Weapons (WHO) case of Malaysia ( ibid. , § 328) and Sri Lanka ( ibid. , § 349). 66 ICJ, , Advisory Opinion ( ibid. , § 389). Nuclear Weapons case 67 Amended Protocol II to the CCW, Article 1(2). 68 Ottawa Convention, preamble (cited in Vol. II, Ch. 20, § 264). 69 ibid. , § 270), Colombia ( ibid. , § 274), Ecuador See, e.g., the military manuals of Australia ( ibid. ibid. ibid. , §§ 278–279), South Korea ( ibid. , § 281), Nigeria ( ( , § 283) , § 275), Germany ( and Yugoslavia ( ibid. , § 290). 70 See, e.g., the statements of Ecuador ( ibid. , § 307), Egypt ( ibid. , §§ 309–310), Holy See ( ibid. , § 315), Israel ( ibid. ibid. , § 327), Marshall Islands ( ibid. , § 329), Netherlands , § 320), Lesotho ( ibid. ( ibid. , § 341), Russia ( ibid. , §§ 342–343), Rwanda ( ibid. , § 345), , §§ 333–335), Romania ( South Africa ( ibid. , § 352), United Kingdom ( ibid. , § 358) and United States ( ibid. , § 365) and the reported practice of India ( ibid. , § 316), Iran ( ibid. , § 317), Kuwait ( ibid. , § 326) and United States ( ibid. , § 366).

308 Rule 71 247 71 civilians and combatants and between civilian objects and military objectives. While the Court noted that it would not consider the issue of non-international armed conflicts, it did state, however, that “States must never make civilians the object of attack and must consequently never use weapons that are inca- 72 pable of distinguishing between civilian and military targets”. No official contrary practice was found with respect to either international or non-international armed conflicts. No State has indicated that it may use indiscriminate weapons in any type of armed conflict. Definition of indiscriminate weapons Several military manuals and official statements mention weapons that “have indiscriminate effects”, “strike military objectives and civilians indiscrim- inately” or “cannot distinguish between military objectives and civilians”, 73 Beyond such general statements, the two criteria that without further detail. are most frequently referred to are whether the weapon is capable of being targeted at a military objective and whether the effects of the weapon can be limited as required by international law. These criteria are both laid out in Addi- tional Protocol I: Article 51(4)(b) prohibits weapons which cannot be directed at a specific military objective and Article 51(4)(c) prohibits weapons the effects 74 of which cannot be limited as required by the Protocol. These criteria are part of the definition of indiscriminate attacks under customary international law (see Rule 12). The criterion whereby a weapon cannot be directed at a specific military objective is referred to in several military manuals, official statements and 75 reported practice. Judge Higgins, in her dissenting opinion in the Nuclear , stated that a weapon is indiscriminate in nature if it is inca- Weapons case 76 ́ pable of being targeted at a military objective. Marti in 1996, the In the c case 71 See, e.g., the oral pleadings and written statements in the Nuclear Weapons case of Ecuador ibid. , § 308), Egypt ( ibid. , § 310), Iran ( ibid. , §§ 317–318), Japan ( ibid. ( ibid. , , § 323), Nauru ( § 332), New Zealand ( , § 336), Solomon Islands ( ibid. , § 348), United Kingdom ( ibid. ibid. , § 358) and United States ( ibid. , § 364); see also the written statements in the Nuclear Weapons (WHO) case of Malaysia ( ibid. , § 328), Mexico ( ibid. , § 331), Solomon Islands ( ibid. , § 347) and Sri Lanka ( ibid. , § 349). 72 ICJ, ibid. , § 389). Nuclear Weapons case , Advisory Opinion ( 73 See, e.g., the military manuals of Colombia ( , § 274), France ( ibid. , §§ 276–277), Germany ibid. ibid. , §§ 278–279), Sweden ( ( , § 285) and Switzerland ( ibid. , § 286) and the statements of ibid. China ( ibid. , § 305), Iran ( ibid. , § 317), Marshall Islands ( ibid. , § 330), Mexico ( ibid. , § 331), Nauru ( ibid. , § 332), New Zealand ( ibid. , § 336), Romania ( ibid. , § 341) and Solomon Islands ( ibid. , § 347). 74 Additional Protocol I, Article 51(4)(b) (cited in Vol. II, Ch. 3, § 206) and Article 51(4)(c) ( ibid. , § 251). 75 See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 20, § 270), Canada ( ibid. , § 273), Ecuador ( ibid. , § 275), Israel ( ibid. , § 280), New Zealand ( ibid. , § 282) and United States ( ibid. , §§ 287–289), the statements of Israel ( , § 320) and United Kingdom ( ibid. , § 357) and the ibid. reported practice of Israel ( ibid. , § 321). 76 ICJ, Nuclear Weapons case , Dissenting Opinion of Judge Higgins ( ibid. , § 392).

309 248 general principles on the use of weapons International Criminal Tribunal for the Former Yugoslavia also referred to this 77 criterion. The criterion whereby the effects of a weapon cannot be limited as required by international humanitarian law is also referred to in several military man- 78 uals and official statements. In their submissions to the International Court , several States argued that a weapon is Nuclear Weapons case of Justice in the indiscriminate if it has uncontrollable effects or if the damage would be exten- sive and may be expected to cause incidental civilian losses which would be 79 excessive in relation to the military advantage anticipated. , those judges of the In their individual opinions in the Nuclear Weapons case International Court of Justice who believed that nuclear weapons are indiscrim- inate in nature seem to have based their analysis on the criterion of a weapon whose effects cannot be limited, as they supported their opinions by referring to 80 the widespread destruction caused by the weapon both in time and in space. These judges did not, however, attempt a specific definition. In the preamble to a resolution adopted in 1969, the UN General Assem- bly stated that biological and chemical weapons “are inherently reprehensible 81 because their effects are often uncontrollable and unpredictable”. The pro- hibition of weapons that have “indiscriminate effects” was also recalled in a 82 resolution adopted by the Organization of American States in 1998. Interpretation Although the existence of the rule prohibiting indiscriminate weapons is not contested, there are differing views on whether the rule itself renders a weapon illegal or whether a weapon is illegal only if a specific treaty or customary rule prohibits its use. In their submissions to the International Court of Justice in the Nuclear Weapons case , the majority of States used the rule prohibiting indiscriminate weapons itself to argue their case on the lawfulness or otherwise 83 of nuclear weapons. France, however, stated that it believed the existence of a 77 ́ ICTY, Marti , Review of the Indictment ( ibid. , § 397). c case 78 See, e.g., the military manuals of Australia ( , § 270), Canada ( ibid. , § 273), Colombia ( ibid. , ibid. § 274), Ecuador ( ibid. , § 275), Israel ( ibid. , § 280), New Zealand ( ibid. , § 282), Switzerland ( ibid. , § 286), United States ( ibid. ibid. , § 290) and the statements of , §§ 287–289) and Yugoslavia ( ibid. , § 305), Romania ( , § 341) and Sweden ( ibid. , § 350). ibid. China ( 79 Nuclear Weapons case of Ecuador See, e.g., the oral pleadings and written statements in the ibid. , § 308), Egypt ( ( , §§ 310–311), Iran ( ibid. , § 317), Japan ( ibid. , § 323), Marshall Islands ibid. ( ibid. , § 330) and Zimbabwe ( ibid. , § 368); see also the written statements in the Nuclear Weapons (WHO) case of Malaysia ( ibid. , § 328) and Solomon Islands ( ibid. , § 347). 80 See, e.g., ICJ, , Separate Opinion of Judge Fleischhauer ( ibid. , § 394), Nuclear Weapons case ibid. , § 395) and Declaration of President Bedjaoui ( Declaration of Judge Herczegh ( , § 396); ibid. see also the individual opinions of Judges Ferrari-Bravo, Koroma, Ranjeva, Shahabuddeen and Weeramantry. 81 UN General Assembly, Res. 2603 A (XXIV). Although three States voted against this resolution and 36 abstained, the disagreement was primarily in relation to herbicides and not the general principles. 82 OAS General Assembly, Res. 1565 (XXVIII-O/98) (cited in Vol. II, Ch. 20, § 382). 83 See, e.g., the oral pleadings and written statements in the Nuclear Weapons case of Ecuador ( , , § 308), Egypt ( ibid. , §§ 310–311), Iran ( ibid. , §§ 317–318), Marshall Islands ( ibid. ibid.

310 Rule 71 249 specific rule to be necessary before a particular weapon could be considered by 84 nature indiscriminate and thus illegal. In their individual opinions, the judges of the Court assessed the legality of the effects of nuclear weapons on the basis 85 of the rule itself and independent of treaty law. The discussions leading to the adoption of various UN General Assembly resolutions and the Convention on Certain Conventional Weapons are ambiguous, with some statements giving the impression that certain weapons are already prohibited by virtue of this 86 rule and others arguing the need for a specific prohibition. Examples The following weapons have been cited in practice as being indiscriminate 87 89 88 in certain or all contexts: chemical, and nuclear weapons; biological 90 91 92 mines; anti-personnel landmines; poison; explosives discharged from ibid. ibid. , § 335), New Zealand ( ibid. , § 336), Solomon §§ 329–330), Nauru ( , § 332), Netherlands ( , § 348), United Kingdom ( , § 358), United States ( ibid. ibid. , § 364) and Zim- Islands ( ibid. , § 368); see also the written statements in the Nuclear Weapons (WHO) case of babwe ( ibid. ibid. , § 331), Rwanda ( ibid. , § 345), Solomon Islands ( ibid. , § 347) and Sri Lanka ( ibid. Mexico ( , § 349). 84 France, Written statement submitted to the ICJ in the ibid. , Nuclear Weapons (WHO) case ( § 313); see also Italy, Statement at the Diplomatic Conference leading to the adoption of the ibid. Additional Protocols ( , § 322). 85 , Judges’ individual opinions ( ibid. , §§ 390–396). See ICJ, Nuclear Weapons case 86 ibid. , §§ 303–304), Cyprus ( ibid. , § 306), Ecuador ( ibid. , § 307), See, e.g., the statements of Canada ( ibid. Egypt ( ibid. , § 312), Federal Republic of Germany ( ibid. , § 314), Holy See , § 309), France ( ( , § 315), Israel ( ibid. , § 320), Italy ( ibid. , § 322), Netherlands ( ibid. , § 334), Nigeria ( ibid. ibid. , § 337), Poland ( ibid. , § 340), Romania ( ibid. , § 341), Russia ( ibid. , § 343), Sweden ( ibid. , § 350), Switzerland ( ibid. , § 351), Turkey ( ibid. , § 353), United Kingdom ( ibid. , § 355) and Vietnam ( ibid. , § 367). 87 See, e.g., the military manuals of Australia ( ibid. , §§ 276–277) and ibid. , §§ 270–271), France ( , § 284) and the statements of Romania ( , § 341) and United States ( ibid. , § 360); ibid. ibid. Russia ( , § 378) and Res. 1996/16 see also the UN Sub-Commission on Human Rights, Res. 1989/39 ( ibid. , § 379) and UN Secretariat, Existing rules of international law concerning the prohibition ibid. ( or restriction of use of specific weapons, Survey ( ibid. , § 380). 88 ibid. See, e.g., the military manuals of Australia ( ibid. , §§ 276–277), Russia , §§ 270–271), France ( ( , § 284) and United States ( ibid. , § 287) and the statements of Romania ( ibid. , § 341) and ibid. ibid. ibid. Sweden ( , , § 350); see also the UN Sub-Commission on Human Rights, Res. 1996/16 ( § 379) and UN Secretariat, Existing rules of international law concerning the prohibition or restriction of use of specific weapons, Survey ( , § 380). ibid. 89 See, e.g., the military manual of Switzerland ( ibid. , § 286) and the statements of Australia ( ibid. , § 301), Ecuador ( ibid. , § 308), Egypt ( ibid. , § 311), Iran ( ibid. , §§ 317–318), Japan ( ibid. , § 323), Lesotho ( ibid. ibid. , § 328), Marshall Islands ( ibid. , §§ 329–330), , § 327), Malaysia ( ibid. ibid. , § 368); see also UN Sub-Commission Solomon Islands ( , § 347) and Zimbabwe ( ibid. , § 379) and UN Secretariat, Existing rules of interna- on Human Rights, Res. 1996/16 ( ibid. tional law concerning the prohibition or restriction of use of specific weapons, Survey ( , § 380). 90 See, e.g., the military manuals of France ( ibid. , §§ 276–277) and the reported practice of Peru ( ibid. , § 339). 91 See, e.g., the military manuals of Ecuador ( ibid. , § 275) and United States ( ibid. , § 289), the state- ment of Australia ( ibid. ibid. , § 324) and Rwanda , § 300) and the reported practice of Jordan ( ( , § 346); see also UN Secretariat, Existing rules of international law concerning the prohi- ibid. bition or restriction of use of specific weapons, Survey ( ibid. , § 380). 92 See, e.g., the military manuals of Australia ( ibid. , §§ 270–271), Canada ( ibid. , § 273), France ( ibid. , §§ 276–277) and Russia ( ibid. , § 284).

311 250 general principles on the use of weapons 93 95 96 94 booby-traps; cluster bombs; Scud mis- balloons; V-1 and V-2 rockets; 99 97 98 Katyusha rockets; incendiary weapons; and environmental modifi- siles; 100 cation techniques. There is insufficient consensus concerning all of these examples to conclude that, under customary international law, they all violate the rule prohibiting the use of indiscriminate weapons. However, there is agree- ment that some of them are prohibited and they are discussed in subsequent chapters. ∗∗∗∗ N.B. In order to ensure that the use of a means or method of warfare com- plies with international humanitarian law, Additional Protocol I requires States 101 to adopt a national mechanism or procedure to that effect. Several States, including States not party to Additional Protocol I, have implemented this 102 requirement. 93 See, e.g., the military manuals of Ecuador ( ibid. , §§ 287 and ibid. , § 275) and United States ( 289). 94 ibid. , § 275) and United States ( ibid. , §§ 287 and See, e.g., the military manuals of Ecuador ( 289) and the reported practice of Jordan ( , § 324). ibid. 95 ibid. , § 351); see also the UN Sub-Commission on See, e.g., the statement of Switzerland ( Human Rights, Res. 1996/16 ( ibid. , § 379) and UN Secretariat, Existing rules of international law concerning the prohibition or restriction of use of specific weapons, Survey ( ibid. , § 380). 96 See, e.g., the statements of Australia ( ibid. , § 300) and Russia ( ibid. , § 342); see also UN Sec- retariat, Existing rules of international law concerning the prohibition or restriction of use of specific weapons, Survey ( , § 380). ibid. 97 See, e.g., the military manual of Canada ( , § 273), the statements of Israel ( ibid. , § 320), ibid. ibid. , § 356) and United States ( ibid. United Kingdom ( , §§ 361 and 363) and the reported practice of Israel ( ibid. , § 321). 98 See, e.g., the reported practice of Israel ( ibid. , § 321). 99 See, e.g., the statements of Australia ( ibid. , § 300), Russia ( ibid. , § 342), Sweden ( ibid. , § 350), Switzerland ( ibid. ibid. , § 353); see also UN Secretariat, Existing rules of , § 351) and Turkey ( international law concerning the prohibition or restriction of use of specific weapons, Survey ( , § 380). ibid. 100 See, e.g., the military manual of Russia ( ibid. , § 284). 101 Additional Protocol I, Article 36. 102 In particular, Australia, Belgium, Canada, Denmark, Germany, Netherlands, Norway, Sweden, United Kingdom and United States. See Isabelle Daoust, Robin Coupland and Rikke Ishoey, “New wars, new weapons? The obligation of States to assess the legality of means and methods of warfare”, International Review of the Red Cross , No. 846, 2002, p. 345; Justin McClelland, “The review of weapons in accordance with Article 36 of Additional Protocol I”, International Review of the Red Cross , No. 850, 2003, p. 397.

312 chapter 21 POISON Rule 72. The use of poison or poisoned weapons is prohibited. Practice Volume II, Chapter 21. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This prohibition exists independently of the prohibition of chemical weapons (see Rule 74). Although the Geneva Gas Protocol was inspired by the existing pro- hibition of the use of poison, there is sufficient separate practice establishing a specific rule on poison and poisoned weapons. International armed conflicts The prohibition of poison or poisoned weapons is a long-standing rule of cus- tomary international law already recognised in the Lieber Code and the Hague 1 Regulations. “Employing poison or poisoned weapons” constitutes a war crime in international armed conflicts under the Statute of the International Criminal 2 Court. The prohibition of poison or poisoned weapons is set forth in numerous mil- 3 itary manuals. The use of poison or poisoned weapons is an offence under 4 the legislation of many States. This prohibition is also supported by official 1 Lieber Code, Article 70 (cited in Vol. II, Ch. 21, § 4); Hague Regulations, Article 23(a) ( , § 2). ibid. 2 ICC Statute, Article 8(2)(b)(xvii) ( ibid. , § 3). 3 ibid. , § 12), Australia ( See, e.g., the military manuals of Argentina ( , §§ 13–14), Belgium ibid. ( ibid. , § 15), Bosnia and Herzegovina ( ibid. , § 16), Canada ( ibid. , §§ 17–18), Colombia ( ibid. , § 19), Dominican Republic ( ibid. , § 20), Ecuador ( ibid. , § 21), France ( ibid. , §§ 22–24), Germany ( ibid. ibid. , § 26), Israel ( ibid. , §§ 27–28), Italy ( ibid. , § 29), Kenya ( ibid. , § 30), , § 25), Indonesia ( ibid. , § 31), Netherlands ( ibid. , §§ 32–33), New Zealand ( ibid. , § 34), Nigeria ( ibid. , South Korea ( §§ 35–37), Russia ( ibid. , § 38), South Africa ( ibid. , § 39), Spain ( ibid. , § 40), Switzerland ( ibid. , §§ 41–43), United Kingdom ( , §§ 44–45), United States ( ibid. , §§ 46–51) and Yugoslavia ibid. ( ibid. , § 52). 4 See, e.g., the legislation of Australia ( ibid. , §§ 54–55), Brazil ( ibid. , § 56), Canada ( ibid. , § 58), China ( ibid. , § 59), Democratic Republic of the Congo ( ibid. , § 61), Congo ( ibid. , § 60), Estonia 251

313 252 poison 5 There is national case-law to the effect that statements and reported practice. 6 the rule is part of customary international law. Nuclear In their submissions to the International Court of Justice in the Weapons case , several States recalled the prohibition of poison and poisoned 7 weapons. In its advisory opinion, the Court reaffirmed the customary character 8 of the prohibition of the use of poison or poisoned weapons. Non-international armed conflicts The Statute of the International Criminal Court does not include the use of poison or poisoned weapons as a war crime in the sections dealing with non- international armed conflicts, and this issue was not openly debated during the Rome diplomatic conference. As a result, some implementing legislation of the Statute of the International Criminal Court limits to international armed 9 conflicts the rule that the use of poison or poisoned weapons is a war crime. However, the legislation of some States criminalising the use of poison or poi- 10 soned weapons does apply to non-international armed conflicts. Germany’s legislation states explicitly that the rule applies to both international and non- 11 international armed conflicts. The rule is also included in some military manuals which are applicable in or have been applied in non-international 12 armed conflicts. Several military manuals explain the prohibition of poison or poisoned weapons in armed conflicts on the grounds that they are “inhuman” , § 62), Georgia ( ibid. ( ibid. , § 64), Italy ( ibid. , § 65), Mali ( ibid. , § 66), ibid. , § 63), Germany ( ibid. , §§ 67–68), New Zealand ( ibid. , § 69), Switzerland ( ibid. Netherlands ( , § 70), United Kingdom ( , § 72), United States ( ibid. , § 73) and Yugoslavia ( ibid. , § 74); see also the draft ibid. ibid. , § 57) and Trinidad and Tobago ( , § 71). legislation of Burundi ( ibid. 5 ,§§98– ibid. See, e.g., the statements of Iraq ( ibid. , § 80), Pakistan ( ibid. , § 91) and United States ( ibid. , § 77), India 99) and the reported practice of Bosnia and Herzegovina, Republika Srpska ( ibid. , § 79), Jordan ( ibid. , § 82), Kuwait ( ibid. ( ibid. , § 85), Norway ( ibid. , § 90), , § 83), Malaysia ( Philippines ( , § 92) and Rwanda ( ibid. , § 93). ibid. 6 See, e.g., Japan, District Court of Tokyo, Shimoda case ibid. , § 75). ( 7 See, e.g., the oral pleadings and written statements in the Nuclear Weapons case of Egypt ( ibid. , § 78), Marshall Islands ( ibid. , § 86), Mexico ( ibid. , § 87), New Zealand ( ibid. , § 89), Solomon Islands ( ibid. ibid. , § 96), United Kingdom ( ibid. , § 97), United , §§ 94–95), Sweden ( ibid. , § 100) and Zimbabwe ( , § 101); see also the oral pleadings and written States ( ibid. of Malaysia ( ibid. , § 84) and Nauru ( Nuclear Weapons (WHO) case , statements in the ibid. § 88). 8 ICJ, Nuclear Weapons case , Advisory Opinion, §§ 80–82. 9 ibid. , § 58), Congo See, e.g., the legislation of Australia (cited in Vol. II, Ch. 21, § 55), Canada ( ibid. , § 69) and United ibid. , § 66), Netherlands ( ibid. , § 68), New Zealand ( ibid. ( , § 60), Mali ( Kingdom ( , § 72); see also the draft legislation of Burundi ( ibid. , § 57) and Trinidad and ibid. Tobago ( ibid. , § 71). 10 See, e.g., the legislation of the Democratic Republic of the Congo ( ibid. , § 61), Estonia ( ibid. , § 62), Germany ( ibid. ibid. , § 70) and Yugoslavia ( ibid. , § 74); see also the legislation , § 64), Switzerland ( ibid. of Italy ( , § 65), the application of which is not excluded in time of non-international armed conflict. 11 Germany, ( ibid. , § 64). Law Introducing the International Crimes Code 12 See, e.g., the military manuals of Australia ( ibid. , § 13), Bosnia and Herzegovina ( ibid. , § 16), Canada ( , § 18), Colombia ( ibid. , § 19), Ecuador ( ibid. , § 21), Germany ( ibid. , § 25), Italy ibid. ( ibid. , § 29), Kenya ( ibid. , § 30), Nigeria ( ibid. , §§ 35 and 37), South Africa ( ibid. , § 39) and Yugoslavia ( ibid. , § 52).

314 Rule 72 253 and/or “indiscriminate”, an argument that is equally valid in non-international 13 armed conflicts. There is also reported practice from a number of States that 14 supports the application of this rule in non-international armed conflicts. Practice is in conformity with the rule’s applicability in both international and non-international armed conflicts, as States generally do not have a different set of military weapons for international and non-international armed conflicts. There have been no confirmed reports of the use of poison or poisoned weapons 15 in either international or non-international armed conflicts. Allegations of such use have been rare. No State has claimed that poison may lawfully be used in either interna- tional or non-international armed conflicts. The one example of limited con- trary practice – a manual asserting that poisoning of drinking water and food is not forbidden if it is announced or marked – is not sufficient to deny the 16 customary law character of this rule. Definition of poison or poisoned weapons Most States indicate that poison or poisoned weapons are prohibited with- out further detail. In its advisory opinion in the , the Nuclear Weapons case International Court of Justice stated that the terms “poison” and “poisoned weapons” “have been understood, in the practice of States, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is to poison 17 or asphyxiate”. In their submissions to the International Court of Justice in the Nuclear Weapons case , the United Kingdom and the United States stated that the prohibition did not apply to weapons which could incidentally poison, but only to weapons that were designed to kill or injure by the effect of such 18 poison. This interpretation does not indicate that poison must be the primary or exclusive injury mechanism but that it must be an “intended” injury mech- anism and is in keeping with the origin of the rule, namely, to prohibit the smearing of arrows with poison which would prevent recovery from the injury caused by the arrow. 13 See, e.g., the military manuals of Australia ( ibid. , §§ 13–14), Canada ( ibid. , § 17), France ( ibid. , §§ 23–24), Israel ( ibid. ibid. , § 47) and the military manuals of , § 28) and United States ( ibid. ibid. , § 73), Ecuador (cited in Vol. II, Ch. 20, § 52), Netherlands ( , § 72), New Zealand ( ibid. , § 80), United Kingdom ( South Africa ( , § 85) and United States ( ibid. , §§ 87, 89, 91 ibid. and 93). 14 See, e.g., the reported practice of Bosnia and Herzegovina, Republika Srpska (cited in Vol. II, Ch. 21, § 77), India ( ibid. , § 79) Philippines ( ibid. , § 92) and Rwanda ( ibid. , § 93). 15 Reports of the use of chemical weapons and riot-control agents are addressed in Chapter 24. 16 See Yugoslavia, YPA Military Manual (cited in Vol. II, Ch. 21, § 52). 17 ICJ, Nuclear Weapons case , Advisory Opinion ( ibid. , § 111). 18 Written statements in the Nuclear Weapons case of the United Kingdom ( ibid. , § 97) and United States ( ibid. , § 100).

315 254 poison Examples The prohibition of the use of poison or poisoned weapons is understood as outlawing such practices as the smearing of bullets with poison or poisoning the food and drink of the adverse party. In their explanation of the application of this rule, several military manuals specify that the prohibition of poison 19 extends to poisoning wells and other water supplies. 19 ibid. See, e.g., the military manuals of Australia ( ibid. , , § 14) (even if notice is given), Belgium ( § 15) (even if notice is given), Canada ( ibid. , § 17) (even if notice is given), Colombia ( ibid. , § 19), Dominican Republic ( ibid. , § 20), Germany ( ibid. , § 25), Israel ( ibid. , § 28), South Korea ( ibid. , § 31), Netherlands ( , § 32), Nigeria ( ibid. , § 36), South Africa ( ibid. , § 39), Spain ( ibid. , § 40), ibid. Switzerland ( ibid. , § 43), United Kingdom ( ibid. , § 44) (even if notice is given), United States ( ibid. , §§ 46 and 48–49) and Yugoslavia ( ibid. , § 52) (unless notice is given).

316 chapter 22 NUCLEAR WEAPONS The present study was mandated by the 26th International Conference of the Red Cross and Red Crescent in December 1995. A year earlier, the UN General Assembly had asked the International Court of Justice for an advisory opinion on the following question: “Is the threat or use of nuclear weapons in any 1 circumstance permitted under international law?” All States wishing to do so had the opportunity to express their opinion on this question, in written statements and the oral pleadings before the Court. In an advisory opinion of 8 July 1996, the International Court of Justice stated in relation to customary international law and the applicability of international humanitarian law to nuclear weapons that: There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons; There is in neither customary nor conventional international law any compre- hensive and universal prohibition of the threat or use of nuclear weapons as such; ... A threat or use of nuclear weapons should also be compatible with the require- ments of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with spe- cific obligations under treaties and other undertakings which expressly deal with nuclear weapons; It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law appli- cable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance 2 of self-defence, in which the very survival of a State would be at stake. As mentioned above, this opinion took into account a wide range of legal anal- ysis and scientific evidence presented by States. As a result, the Court being the principal judicial organ of the United Nations, the ICRC had to take due note of the Court’s opinion and deemed it not appropriate to engage in a similar exercise at virtually the same time. 1 UN General Assembly, Res. 49/75 K on request for an advisory opinion from the International Court of Justice on the legality of the threat or use of nuclear weapons, 15 December 1994, eleventh paragraph. 2 ICJ, Nuclear Weapons case , Advisory Opinion, 8 July 1996, ICJ Reports 1996 , p. 226. 255

317 chapter 23 BIOLOGICAL WEAPONS Rule 73. The use of biological weapons is prohibited. Practice Volume II, Chapter 23. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule applies to biological weapons that are meant to affect humans. Whether it is intended to apply to herbicides is discussed under Rule 76. International and non-international armed conflicts The prohibition of the use of biological weapons in international armed con- flicts is based on the Geneva Gas Protocol and the Biological Weapons Conven- 1 tion. When they became party to the Geneva Gas Protocol, 37 States entered a reservation to the effect that they retained the right to retaliate if an adverse party (and in some cases that party’s ally) violated the terms of the Protocol. 2 Because 17 of these “no first use” reservations have been withdrawn, only 20 3 such reservations remain. However, 18 of the remaining 20 States that have kept their reservations are party to the Biological Weapons Convention, which prohibits any possession of biological weapons, thereby making it unlawful for 4 them to retaliate using such weapons. Thus, at present, Angola and Israel are the only States that have maintained their “no first use” reservation to the Geneva Gas Protocol and are not party to the Biological Weapons Convention. 1 Geneva Gas Protocol (cited in Vol. II, Ch. 23, § 1); Biological Weapons Convention, preamble ( ibid ibid ., § 5). ., § 4) and Article 1 ( 2 Australia, Belgium, Bulgaria, Canada, Chile, Estonia, France, Ireland, South Korea, Netherlands, New Zealand, Romania, Russia, Slovakia, South Africa, Spain and United Kingdom ( ibid ., § 1). 3 Algeria, Angola, Bahrain, Bangladesh, China, Fiji, India, Iraq, Israel, Jordan, North Korea, Kuwait, Libya, Nigeria, Pakistan, Papua New Guinea, Portugal, Solomon Islands, Vietnam and Yugoslavia ( ibid ., § 1). 4 Biological Weapons Convention, Article 1 ( ibid ., § 5). 256

318 Rule 73 257 It can be concluded from the drive to eliminate biological weapons over the last three decades that States believe that these weapons should not exist and therefore must not be used in any circumstances, including in non- international armed conflicts. Virtually all allegations of possession by States have been denied. When Russia admitted in 1992 that it continued to have a biological weapons pro- gramme, it stated that it would definitely halt the programme. Since then, it has vigorously denied allegations that it continued to manufacture biological 5 weapons. Reports of Iraq’s biological weapons programmes attracted the con- 6 demnation of the international community. Statements and other practice of States, both parties and non-parties to the Biological Weapons Convention, indicate that the prohibition on using biological weapons in any circumstances 7 is not purely treaty-based. There is widespread State practice in the form of military manuals and legis- lation to the effect that the use of biological weapons is prohibited irrespective of whether the State concerned is a party to the Biological Weapons Conven- tion or whether it has made a “no first use” reservation to the Geneva Gas 8 Protocol. The US Naval Handbook states that the prohibition of biological weapons is part of customary law and binds all States, whether or not they 9 are party to the Geneva Gas Protocol or the Biological Weapons Convention. Three States not party to the Biological Weapons Convention have criminalised 10 the production, acquisition, sale or use of biological weapons. There is also national case-law to the effect that biological weapons are prohibited, including 11 in non-international armed conflicts. 5 ibid ., §§ 210–213). See the practice of Russia (and formerly the USSR) ( 6 ibid ., § 106), Ecuador ( ibid ., § 115), France ( ibid ., § 121), USSR See, e.g., the statements of Cuba ( ibid ( ibid ., §§ 219–220 and 222), United States ( ibid ., § 233) and ., § 209), United Kingdom ( ibid ., § 237); UN Secretary-General, Reports on the work of the Special Commission Yemen ( ., § 257); UNSCOM, Final established pursuant to Security Council resolution 687 (1991) ( ibid report of the Panel on disarmament and current and future ongoing monitoring and verification ., § 258). issues ( ibid 7 ibid ., §§ 76–241). See, e.g., the statements, practice and reported practice ( 8 ibid ., §§ 12–13), Belgium ( ibid ., § 14), Bosnia and See, e.g., the military manuals of Australia ( ibid Herzegovina ( ibid ., § 16), Canada ( ibid ., § 17), Colombia ( ibid ., § 18), ., § 15), Cameroon ( Ecuador ( ., § 19), France ( ibid ., §§ 20–22), Germany ( ibid ., §§ 23–25), Italy ( ibid ., § 26), ibid Kenya ( ibid ., § 27), Netherlands ( ibid ., §§ 28–29), New Zealand ( ibid ., § 30), Nigeria ( ibid ., § 31), Russia ( ibid ibid ., § 33), Spain ( ibid ., § 34), Switzerland ( ibid ., §§ 35–36), ., § 32), South Africa ( ibid ibid ., §§ 39–43) and Yugoslavia ( ibid ., § 44) United Kingdom ( ., §§ 37–38), United States ( ibid ., § 45), Belarus ( ibid ., § 47), Brazil ( ibid and the legislation of Armenia ( ibid ., ., § 48), China ( § 49), Colombia ( ibid ., § 50), Croatia ( ibid ., § 51), Estonia ( ibid ., § 52), Georgia ( ibid ., § 54), Germany ( ibid ., § 55), Hungary ( ibid ., § 57), Italy ( ibid ., § 58), Moldova ( ibid ., § 61), Poland ibid ( ibid ., § 66), Tajikistan ( ibid ., § 68), Ukraine ( ., § 64), Switzerland ( ., § 69) and Yugoslavia ibid ( ibid ., § 73). 9 United States, Naval Handbook ( ibid ., § 43); see also France, LOAC Teaching Note ( ibid ., § 22). 10 ibid ., § 60), Moldova (draft See the legislation of Kazakhstan (“production, acquisition or sale”) ( legislation adopted in 2003) (“use”) ( ibid ., § 61) and Tajikistan (“production, acquisition” or “sale” and “use”) ( ibid ., § 68). 11 Japan, District Court of Tokyo, Shimoda case ( ibid ., § 75); Colombia, Constitutional Court, Constitutional Case No. C-225/95 ( ibid ., § 74).

319 258 biological weapons The prohibition of the use of biological weapons is also supported by a num- ber of official statements. For example, in January 1991, the United Kingdom and the United States informed Iraq that they expected it not to use biologi- cal weapons, although at that time Iraq had a “no first use” reservation to the Geneva Gas Protocol and was not yet party to the Biological Weapons Conven- 12 tion. In 2001, the United States accused Syria of violating the terms of the Biological Weapons Convention, although Syria was not a party to the Conven- 13 tion. In its submission to the International Court of Justice in the Nuclear , Australia stated that the use of biological weapons would be Weapons case 14 contrary to “fundamental general principles of humanity”. Several UN General Assembly resolutions called for States to adhere to the Geneva Gas Protocol and/or the Biological Weapons Convention and for strict 15 observance by all States of the principles and objectives contained therein. In 1990 and 1991, the ICRC reminded all parties to the Gulf War that the use 16 of biological weapons was prohibited under international humanitarian law. In 1994, it recalled the prohibition in the context of the conflict in Angola, although Angola had a “no first use” reservation to the Geneva Gas Protocol 17 and was not party to the Biological Weapons Convention. In neither instance was the ICRC’s assertion contested. Practice is in conformity with the rule’s applicability in both international and non-international armed conflicts, as States generally do not have a dif- ferent set of military weapons for international and non-international armed conflicts. All allegations of use of biological weapons by States have been denied 18 and in most cases disproved. 12 United Kingdom, Letter to the President of the UN Security Council ( ibid ., § 220); United States, Department of State, Diplomatic Note to Iraq ( ibid ., § 233). 13 United States, Statement at the Fifth Review Conference of States Parties to the Biological ibid ., § 236). Weapons Convention ( 14 Nuclear Weapons case Australia, Oral pleadings before the ICJ in the ibid ., § 79). ( 15 See, e.g., UN General Assembly, Res. 3256 (XXIX) ( ibid ., §§ 245–247) and Res. 32/77 and 33/59 A ( ibid ., §§ 245–246 and 253), all of which were adopted without a vote. 16 ibid ., § 272) and ICRC, Memorandum on the Applicability of International Humanitarian Law ( Press Release No. 1658 ( ibid ., § 273). 17 ICRC, Memorandum on Respect for International Humanitarian Law in Angola ( ibid ., § 274). 18 See, e.g., the practice of Russia (and formerly USSR) ( ibid ., §§ 212, 231 and 277) and United States ( ibid ., § 108).

320 chapter 24 CHEMICAL WEAPONS Rule 74. The use of chemical weapons is prohibited. Practice Volume II, Chapter 24, Section A. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The use of chemical weapons is prohibited in international armed conflicts in a series of treaties, including the Hague Declaration concerning Asphyxiating Gases, the Geneva Gas Protocol, the Chemical Weapons Convention and the 1 At present, only 13 States are not Statute of the International Criminal Court. 2 party to either the Geneva Gas Protocol or the Chemical Weapons Convention. Of these, at least three have made statements to the effect that the use of chemical weapons is unlawful, or have indicated that they do not possess or 3 use them or that they are committed to their elimination. The prohibition is 4 also contained in a number of other instruments. 1 Hague Declaration concerning Asphyxiating Gases (cited in Vol. II, Ch. 24, § 1); Geneva Gas Protocol ( ibid ., § 4); Chemical Weapons Convention, Article I ( ibid ., § 13); ICC Statute, Article 8(2)(b)(xviii) ( ibid ., § 15). 2 Bahamas, Chad, Comoros, Democratic Republic of the Congo, Congo, Djibouti, Haiti, Honduras, Marshall Islands, Myanmar, Niue, Somalia and Vanuatu. 3 ibid ., § 187), Haiti ( ibid ., § 240) See the statements of the Democratic Republic of the Congo ( and Honduras ( ., § 242). ibid 4 See, e.g., Oxford Manual of Naval War, Article 16(1) ( ibid ., § 16); Report of the Commission on Responsibility ( ibid ., § 17); Mendoza Declaration on Chemical and Biological Weapons ( ., § 20); Cartagena Declaration on Weapons of Mass Destruction ( ibid ., § 21); India- ibid Pakistan Declaration on Prohibition of Chemical Weapons ( ibid ., § 22); UN Secretary-General’s Bulletin, Section 6.2 ( ibid ., § 24); UNTAET Regulation No. 2000/15, Section 6(1)(b)(xviii) ( ibid ., § 25). 259

321 260 chemical weapons Numerous military manuals restate the prohibition of the use of chemical 5 6 weapons. This prohibition is also contained in the legislation of many States. There are numerous statements and other practice by States from all parts of the world to the effect that the use of chemical weapons is prohibited under 7 customary international law. Most allegations of use since the 1930s either are unsubstantiated or have been denied; the few confirmed cases have been 8 widely denounced by other States. There is also national case-law to the effect that the use of chemical weapons is prohibited under customary international 9 law. There is increasing evidence that it may now be unlawful to retaliate in kind to another State’s use of chemical weapons. There are still 21 reserva- tions to the Geneva Gas Protocol stating that if an adverse party (and in some cases that party’s ally) does not respect the Protocol, the ratifying State will 10 no longer consider itself bound by it. However, 16 of these States are party to the Chemical Weapons Convention, which prohibits all use and to which no reservations are allowed. This leaves only five States (Angola, Iraq, Israel, North Korea and Libya) which, under treaty law, could avail themselves of their reserved right to retaliate in kind to the first use of chemical weapons. Of these, three (Israel, North Korea and Libya) have asserted that they will 5 ibid ibid ., § 28), Bosnia and See, e.g., the military manuals of Australia ( ., §§ 26–27), Belgium ( ., § 29), Cameroon ( ., § 33), ., § 30), Canada ( ibid ., §§ 31–32), Colombia ( ibid ibid Herzegovina ( ibid ibid ibid ., §§ 35–37), Germany ( ibid ., §§ 38–40), Israel ( ibid ., § 41), Italy Ecuador ( ., § 34), France ( ibid ., § 42), Kenya ( ibid ., § 43), Netherlands ( ( ., §§ 44–45), New Zealand ( ibid ., § 46), Nigeria ibid ( ., § 47), Russia ( ibid ., § 48), South Africa ( ibid ., § 49), Spain ( ibid ., § 50), Switzerland ( ibid ., ibid ibid ., §§ 53–54), United States ( ., §§ 55–59) and Yugoslavia §§ 51–52), United Kingdom ( ibid ., § 60). ibid ( 6 See, e.g., the legislation ( ibid ., §§ 61–117). 7 ibid ., § 41), Netherlands ( ibid ., § 44), New Zealand ( ibid ., See, e.g., the military manuals of Israel ( § 46) and United States ( ibid ibid ., ., § 59) (prohibition of first use), the statements of Belarus ( ibid ., § 196), Hungary ibid ., § 160), Czechoslovakia ( ibid § 144), Belgium ( ., § 150), Bulgaria ( ibid ( ibid ., § 266), Democratic Kampuchea ( ibid ., § 279), Lesotho ( ibid ., § 295), ., § 243), Italy ( Netherlands ( ibid ., § 320), New Zealand ( ibid ., § 324), Poland ( ibid ., § 343), Romania ( ibid ., § 347), Saudi Arabia ( ibid ibid ., § 371), Switzerland ( ibid ., § 375), Tanzania ., § 353), Sweden ( ibid ., § 379), Ukraine ( ., § 389), USSR ( ibid ., § 395), United Kingdom ( ibid ., § 414) and ( ibid ., § 420) (prohibition of first use) and the reported practice of Iran ( ., ibid United States ( ibid ., § 288), South Africa ( ibid ., § 361) and Zimbabwe ( ibid ., § 443). § 255), South Korea ( ibid 8 ibid ., §§ 151–152), Canada ( ibid ., § 173), China ( See, e.g., the statements of Belgium ( ., § 177), ibid Denmark ( ., § 203), Egypt ( ibid ., § 208), France ( ibid ., § 222), Germany ( ibid ., §§ 230 and ibid ibid ibid 233), Hungary ( ., § 250), Israel ( ibid ., § 260), Cambodia (and formerly ., § 243), Iran ( Kampuchea) ( ., §§ 278–279), Luxembourg ( ibid ., § 301), Mongolia ( ibid ., § 313), Netherlands ibid ( ibid ., § 319), Norway ( ibid ., § 328), Peru ( ibid ., § 338), Portugal ( ibid ., § 344), Russia ( ibid ., § 350), Sweden ( ibid ibid ., § 378), Turkey ( ibid ., § 388), USSR ( ibid ., § 397), ., §§ 371–372), Syria ( ibid ., §§ 406–407 and 409–412), United States ( ibid ., §§ 397, 416, 418, 424 United Kingdom ( ibid and 430) and Vietnam ( ibid ., § 269), India ( ibid ., ., § 434) and the reported practice of China ( § 332), Iran ( ibid ., § 255), Italy ( ibid ., § 264), Japan ( ibid ., § 269), Pakistan ( ibid ., § 333), Sudan ( ., § 366) and Yugoslavia ( ibid ., §§ 439–440). ibid 9 See, e.g., Colombia, Constitutional Court, Constitutional Case No. C-225/95 ( ibid ., § 119); Japan, District Court of Tokyo, Shimoda case ( ibid ., § 120). 10 Algeria, Angola, Bahrain, Bangladesh, China, Fiji, India, Iraq, Israel, Jordan, North Korea, Kuwait, Libya, Nigeria, Pakistan, Papua New Guinea, Portugal, Solomon Islands, United States, Vietnam and Yugoslavia.

322 Rule 74 261 11 never use chemical weapons or are strongly committed to their elimination. It is significant that “employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” is listed in the Statute of the Interna- tional Criminal Court as a war crime over which the Court has jurisdiction, 12 and that the crime is not limited to first use of such weapons. The US Naval Handbook implies that, for non-parties to the Chemical Weapons Convention, retaliation in kind is lawful, but that it must stop once 13 the use that prompted the retaliation has terminated. However, in January 1991, both the United States and the United Kingdom stated that they expected Iraq to abide by its obligations under the Geneva Gas Protocol and not use 14 chemical weapons, even though Iraq had made a “no first use” reservation. Iran stated in 1987 that it had never retaliated against Iraq’s use of chemical weapons, although its position at the time was that the Geneva Gas Protocol 15 only prohibited first use. In several resolutions between 1986 and 1988, the UN Security Council con- demned the use of chemical weapons in the Iran–Iraq War without any regard 16 to whether the use was a first use or in retaliation. In 1990 and 1991, the ICRC reminded the parties to the Gulf War that the 17 use of chemical weapons was prohibited. The parties concerned had “no first use” reservations to the Geneva Gas Protocol, and the Chemical Weapons Convention did not yet exist. Non-international armed conflicts The prohibition of the use of chemical weapons contained in the Chem- ical Weapons Convention applies in all circumstances, including in non- 18 international armed conflicts. In addition, the prohibition is contained in sev- 19 eral other instruments pertaining also to non-international armed conflicts. 11 ibid See the statements of Israel ( ibid ., §§ 283–284) and Libya ( ibid ., ., §§ 260–263), North Korea ( §§ 297–299). 12 ICC Statute, Article 8(2)(b)(xviii) ( ibid ., § 15). 13 United States, Naval Handbook ( ibid ., § 59). 14 United Kingdom, Letter to the President of the UN Security Council ( ., § 410) and State- ibid ibid ment by the Minister of State, Foreign and Commonwealth Office ( ., § 411); United States, Department of State, Diplomatic Note to Iraq ( ibid ., § 424). 15 ibid ., Iran, Statement before the First Committee of the UN General Assembly ( § 250). 16 UN Security Council, Res. 582 ( ibid ., § 448), Res. 598 ( ibid ., § 449), Res. 612 ( ibid ., § 450) and Res. 620 ( ibid ., § 451). 17 ICRC, Memorandum on the Applicability of International Humanitarian Law ( ., § 505) and ibid ibid ., § 506). Press Release No. 1658 ( 18 Chemical Weapons Convention, Article I ( ibid ., § 13). 19 See, e.g., Mendoza Declaration on Chemical and Biological Weapons ( ibid ., § 20); Cartagena Dec- laration on Weapons of Mass Destruction ( ibid ., § 21); Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines, Part IV, Article 4(4) ( ibid ., § 23); UN Secretary- General’s Bulletin, Section 6.2 ( ibid ., § 24).

323 262 chemical weapons Several military manuals which apply or have been applied in non- international armed conflicts restate the prohibition on using chemical 20 weapons. This prohibition is also contained in the legislation of numerous 21 States. Colombia’s Constitutional Court has held that the prohibition of the use of chemical weapons in non-international armed conflicts is part of cus- 22 tomary international law. Allegations of use of chemical weapons by Russia in Chechnya, Sudan against armed opposition groups and Turkey in south-eastern Turkey were 23 denied by the governments concerned. Furthermore, as the International ́ in Criminal Tribunal for the Former Yugoslavia recalled in the Tadi c case 1995, the international community condemned Iraq’s use of chemical weapons 24 against the Kurds. The United Kingdom, for example, stated that this use was a violation of the Geneva Gas Protocol and international humanitarian 25 law. ́ c case referred to above, the International Criminal Tribunal for In the Tadi the Former Yugoslavia held that “there undisputedly emerged a general consen- sus in the international community on the principle that the use of [chemical] 26 weapons is also prohibited in internal armed conflicts”. In a Memorandum on Respect for International Humanitarian Law in Angola in 1994, the ICRC reminded the parties to the conflict that the use of chem- ical weapons was prohibited, although Angola had not ratified the Chemical 27 Weapons Convention. Practice is in conformity with the rule’s applicability in both international and non-international armed conflicts, as States generally do not have a different set of military weapons for international and non-international armed conflicts. 20 ibid ., § 26), Bosnia and Herzegovina ( ibid See, e.g., the military manuals of Australia ( ., § 29), Canada ( ., § 32), Colombia ( ibid ., § 33), Ecuador ( ibid ., § 34), Germany ( ibid ., §§ 38–40), ibid ., § 50) and Yugoslavia ibid ., § 43), South Africa ( ibid ., § 49), Spain ( ibid ibid Italy ( ., § 42), Kenya ( ibid ., § 60). ( 21 ibid ., § 61), Australia ( ibid ., § 63), Belarus ( ibid ., § 65), See, e.g., the legislation of Armenia ( ibid Canada ( ibid ., § 74), Czech Republic ( ibid ., § 75), Ecuador ( ibid ., § 77), ., § 68), Croatia ( Estonia ( ., § 78), Finland ( ibid ., § 79), France ( ibid ., § 80), Georgia ( ibid ., § 81), Germany ibid ( ibid ., § 82), India ( ibid ., § 84), Ireland ( ibid ., § 85), Italy ( ibid ., § 87), Japan ( ibid ., §§ 88–89), Kazakhstan ( ibid ibid ., § 91), Luxembourg ( ibid ., § 92), Netherlands ( ibid ., ., § 90), South Korea ( ibid ibid ., § 98), Panama ( ibid ., § 99), Peru ( ibid ., § 100), § 96), New Zealand ( ., § 97), Norway ( ibid ., § 102), Romania ( ibid ., § 103), Russia ( ibid ., § 104), Singapore ( ibid ., § 105), Slovenia Poland ( ibid ( ibid ., § 107), Sweden ( ibid ., § 108), Switzerland ( ibid ., §§ 109–110), ., § 106), South Africa ( ibid ., § 111), Ukraine ( ibid ., § 113), United Kingdom ( ibid ., § 114), United States Tajikistan ( ( ibid ., § 116), Yugoslavia ( ibid ., § 117) and Zimbabwe ( ibid ., § 118); see also the legislation of Bulgaria ( ibid ., § 83) and Italy ( ibid ., § 86), the application of which is not ., § 66), Hungary ( ibid excluded in time of non-international armed conflict. 22 Constitutional Case No. C-225/95 ( ibid ., § 119). Colombia, Constitutional Court, 23 See the statements of Russia ( ibid ., § 350), Sudan ( ibid ., § 366) and Turkey ( ibid ., § 388). 24 ́ Tadi ICTY, c case , Interlocutory Appeal ( ibid ., § 499). 25 ibid ., § 406) and United Kingdom, Statement by the FCO Spokesperson at a Press Conference ( Draft resolution submitted at the UN Commission on Human Rights ( ibid ., § 407). 26 ́ Tadi ICTY, c case , Interlocutory Appeal ( ibid ., § 499). 27 ICRC, Memorandum on Respect for International Humanitarian Law in Angola ( ibid ., § 512).

324 Rule 75 263 No official contrary practice was found. No State has claimed that chemi- cal weapons may lawfully be used in either international or non-international armed conflicts. On the contrary, there are numerous statements to the effect 28 that chemical weapons must never be used and must be eliminated. Rule 75. The use of riot-control agents as a method of warfare is prohibited. Practice Volume II, Chapter 24, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in situations constituting military hostilities during international and non-international armed conflicts, as opposed to domestic riot control. International armed conflicts Before the adoption of the Chemical Weapons Convention, there was disagree- ment as to whether riot-control agents are prohibited under the Geneva Gas Protocol. The vast majority of States are of the opinion that the Geneva Gas Protocol prohibits the use of all asphyxiating and poisonous gases and analo- 29 In the late gous materials, including riot-control agents, and apply it as such. 28 See, e.g., the statements of Afghanistan ( ibid ., §§ 121–122), Albania ( ibid ., § 124), Algeria ( ibid ., §§ 125–126), Armenia ( ibid ., § 136), Austria ( ibid ., §§ 139–140), Bahrain ibid ., § 132), Australia ( ibid ibid ., § 143), Belarus ( ibid ., §§ 146–147), Belgium ( ibid ., § 153), Benin ( ., § 141), Bangladesh ( ., § 154), Brazil ( ibid ., § 158), Bulgaria ( ibid ., § 162), Burkina Faso ( ibid ., § 166), Burma ( ibid ibid ., § 167), Cameroon ( ibid ( ibid ., §§ 172 and 174), Chile ( ibid ., § 176), ., § 169), Canada ( China ( ., §§ 178–181 and 183), Colombia ( ibid ., § 184), Cuba ( ibid ., §§ 190–191 and 194), ibid ibid ., § 200), Ecuador ( ., §§ 206–207), El Salvador ( ibid ., § 212), Ethiopia Czech Republic ( ibid ibid ibid ., § 218), France ( ibid ., §§ 221–222 and 224), Federal Republic ( ., §§ 213–215), Finland ( ibid ., §§ 228–229), German Democratic Republic ( ibid ., § 231), Germany ( ibid ., of Germany ( ibid ., § 234), Greece ( ibid ., § 238), Guinea ( ibid ., § 239), Haiti ( ibid ., §§ 240– § 233), Ghana ( ., ibid 241), Honduras ( ., §§ 244 and 246), Iran ( ibid ., § 253), Israel ( ibid ., § 242), India ( ibid §§ 261–263), Italy ( ibid ., § 268), Japan ( ibid ., §§ 271–272 and 275), Democratic Kampuchea ( ibid ., § 279), South Korea ( ibid ., § 286), Libya ( ibid ., §§ 298–299), Liechtenstein ( ibid ., § 300), Malaysia ( ibid ., §§ ibid ., §§ 311–312), Mongolia ( ., § 314), Nepal 303 and 305), Mexico ( ibid ., § 316), Netherlands ( ibid ibid ibid ., § 327), Norway ( ibid ., § 329), ( ., §§ 317 and 320), Nigeria ( ibid ., § 332), Peru ( ibid ., § 335), Qatar ( ibid ., § 346), Romania ( ibid ., § 349), Saudi Pakistan ( Arabia ( ibid ibid ., § 360), Sri Lanka ( ibid ., §§ 362–363), Sweden ., §§ 354 and 356), South Africa ( ibid ibid ibid ., § 376), Syria ( ( ., § 377), Thailand ( ibid ., §§ 381 ., §§ 367–369 and 371), Switzerland ( ibid ., § 385), Turkey ( ibid ., § 386), Ukraine ( ibid ., §§ 390–391 and 393), USSR and 383), Tunisia ( ( ibid ., § 398), United Kingdom ( ibid ., §§ 403, 405–406 and 412), United States ( ibid ., §§ 427–428), Venezuela ( ibid ibid ., § 435), Yemen ( ibid ., § 437), Yugoslavia ( ibid ., § 438) ., § 433), Vietnam ( ibid ., § 149), Belgium ( ibid and Zaire ( ibid ., § 153), ., § 441); see also the practice of Belarus ( ibid Indonesia ( ibid ., § 283) and the reported practice of Jordan ( ibid ., ., § 248), North Korea ( § 277). 29 See, e.g., the statements of Canada ( ibid ., § 568), China ( ibid ., § 568), Czechoslovakia ( ibid ., § 568), France ( ., § 560), Italy ( ibid ., § 561), Japan ( ibid ., § 568), Romania ( ibid ., § 568), ibid Spain ( ibid ., § 568), Turkey ( ibid ., § 564), USSR ( ibid ., § 565), United Kingdom ( ibid ., § 568) and Yugoslavia ( ibid ., § 568).

325 264 chemical weapons 1960s and early 1970s, Australia, Portugal and the United Kingdom changed their earlier positions, stating that the Geneva Gas Protocol did not apply to 30 certain riot-control agents. A consistent exception to the majority view is that of the United States, which maintains that the customary prohibition of 31 chemical weapons does not apply to agents with temporary effects. During the Vietnam War, when it was not yet a party to the Geneva Gas Protocol, the United States declared that it had applied the Protocol’s provisions, which 32 did not stop it from using riot-control agents. However, the United States is now a party to the Chemical Weapons Convention, which prohibits the use of riot-control agents as a method of warfare and which allows no reservations. The United States has therefore renounced “first use of riot control agents in war except in defensive military modes to save lives” because, according to the United States, use in such modes would not constitute a “method of 33 warfare”. During the negotiations leading to the adoption of the Chemical Weapons Convention, the vast majority of States, including Australia and the United Kingdom, were of the view that riot-control agents must not be used in hostil- ities. The final wording of the treaty makes a distinction between use during hostilities as a method of warfare, which is prohibited, and use for purposes of 34 law-enforcement, which is permitted. This distinction has been confirmed by State practice since then. In particular, the prohibition of the use of riot 35 control agents as a method of warfare is set forth in several military manuals. 36 It is also included in the legislation of several States. 30 Australia, Statement before the First Committee of the UN General Assembly ( ibid ., § 557) ( ibid Protection of the Civil Population Against the Effects of Certain Weapons and ., § 558); Portugal, Vote against Resolution 2603 A (XXIV) of the UN General Assembly ( ibid ., § 586); United Kingdom, Reply by the Secretary of State for Foreign and Commonwealth ibid Affairs in the House of Commons ( Military Manual ., § 569); see also New Zealand, ( ., § 541). ibid 31 See, e.g., United States, Statement before the First Committee of the UN General Assembly ( ., § 577), Statement at the Diplomatic Conference leading to the adoption of the Additional ibid Protocols ( ibid ., § 580) and Memorandum of law of the Department of State on the “Reported Use of Chemical Agents in Afghanistan, Laos, and Kampuchea” ( ibid ., § 581). 32 See, e.g., United States, Department of the Navy, Legal Review of Oleoresin Capsicum (OC) ibid Pepper Spray ( ., § 584) and Department of Defense, Review of Allegations Concerning “Operation Tailwind” ( ibid ., § 585). 33 Naval Handbook ( ibid ., § 548), Executive Order No. 11850 ( ibid ., § 578) and United States, Message from the US President transmitting the report on the chemical weapons convention ( ., § 582). When the US Senate gave its advice and consent for ratification of the Convention ibid on Chemical Weapons it required that “the President shall take no measure, and prescribe no rule or regulation, which would alter or eliminate Executive Order 11850 of April 8, 1975”. US Senate, Executive Resolution 75, 24 April 1997. 34 Chemical Weapons Convention, Article I(5) (cited in Vol. II, Ch. 24, § 528) and Article II(9)(d) ( ibid ., § 532). 35 See, e.g., the military manuals of Australia ( ibid ., §§ 534–535), Canada ( ibid ., §§ 537–538), ibid Germany ( ibid ., § 540), New Zealand ( ibid ., § 541), Spain ( ., § 539), Netherlands ( ., ibid § 542) and United States ( ibid ., § 548). 36 See, e.g., the legislation of Australia ( ibid ., § 549), Hungary ( ibid ., § 550), India ( ibid ., 551), New Zealand ( ibid ., § 552), Romania ( ibid ., 553), Singapore ( ibid ., § 554) and Sweden ( ibid ., § 555).

326 Rule 76 265 Non-international armed conflicts Although the use of riot control agents has been reported in the Greek and 37 Spanish civil wars and by South Vietnam in the Vietnam War, the trend has been towards a prohibition of their use in all armed conflicts. This is reflected in the fact that the prohibition of the use of riot-control agents as a method of warfare contained in the Chemical Weapons Convention applies to all conflicts. It is significant that States did not consider making a general exception in the Convention allowing for the use of riot-control agents in non-international armed conflicts. The prohibition of the use of riot control agents as a method of warfare in non- 38 international armed conflicts is also set forth in several military manuals. The United States has stated that the prohibition of the use of riot control agents as a method of warfare “applies in international as well as internal 39 armed conflict”. No official contrary practice was found with respect to either international or non-international armed conflicts. No State has claimed the right to use riot control agents as a method of warfare in military hostilities. As explained in the military manual of the Netherlands, the prohibition of the use of riot control agents as a method of warfare is inspired by the fact that use of tear gas, for example, in armed conflict “runs the danger of provoking the use of other 40 more dangerous chemicals”. A party which is being attacked by riot control agents may think it is being attacked by deadly chemical weapons and resort to the use of chemical weapons. It is this danger of escalation that States sought to avert by agreeing to prohibit the use of riot control agents as a method of warfare in armed conflict. This motivation is equally valid in international and non-international armed conflicts. Rule 76. The use of herbicides as a method of warfare is prohibited if they: (a) are of a nature to be prohibited chemical weapons; (b) are of a nature to be prohibited biological weapons; (c) are aimed at vegetation that is not a military objective; (d) would cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which may be expected to be excessive in relation to the concrete and direct military advantage anticipated; or (e) would cause widespread, long-term and severe damage to the natural environment. 37 See the reported practice in the context of the Spanish Civil War ( ibid ., § 592), Greek Civil War ( ., § 593) and Vietnam War ( ibid ., § 594). ibid 38 See, e.g., the military manuals of Australia ( ibid ., § 534), Canada ( ibid ., § 537), Germany ( ibid ., § 539), Spain ( ., § 542) and United States ( ibid ., § 548). ibid 39 United States, Naval Handbook ( ibid ., § 548). 40 Netherlands, Military Manual ( ibid ., § 540).

327 266 chemical weapons Practice Volume II, Chapter 24, Section C. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts Before the adoption of the Chemical Weapons Convention, there was disagree- ment as to whether herbicides were prohibited under the Geneva Gas Protocol. In 1969, for example, 80 States voted in favour of a UN General Assembly res- olution indicating that the use of herbicides would be contrary to “generally recognized rules of international law, as embodied in the Geneva Gas Proto- col”, although the 3 negative votes and 36 abstentions show that this was not a 41 In particular, several States considered that the use of universally held view. 42 herbicides and defoliants was not prohibited under the Geneva Gas Protocol. The experience of the Vietnam War, however, revealed the potentially long- term serious effects of herbicides on human health. This use was condemned 43 by other States. Developments in international law since then have attached increased importance to the protection of the environment. It is clear that any use of herbicides in warfare would be controversial, in particular in the light of the clear trend in favour of protecting the environment against deliberate damage. Environmental considerations reportedly led the United States to end 44 its herbicidal programme. It is relevant in this respect that the Final Declaration of the Second Review Conference of the Parties to the ENMOD Convention reaffirmed that the mil- itary and any other hostile use of herbicides as an environmental modification technique is a prohibited method of warfare “if such a use of herbicides upsets the ecological balance of a region, thus causing widespread, long-lasting or severe effects as the means of destruction, damage or injury to another State 45 Party”. In a resolution adopted without a vote, the UN General Assembly 46 noted with satisfaction this reaffirmation. Some States welcomed it as a 41 UN General Assembly, Res. 2603 A (XXIV) ( ., § 630). ibid 42 ibid ., § 615), United Kingdom ( See, e.g., the statements of Australia ( ., § 624) and United ibid States ( ibid ., §§ 625–626). 43 See, e.g., the statements of China ( ibid ., § 617) and Hungary ( ibid ., § 619); see also the statement of China ( ., § 618). ibid 44 See William A. Buckingham, Operation Ranch Hand: The Air Force and Herbicides in Southeast Asia, 1961–1971 ( ibid ., § 628). 45 Second Review Conference of the Parties to the ENMOD Convention, Final Declaration ( ibid ., § 633). 46 UN General Assembly, Res. 47/52 E ( ibid ., § 631).

328 Rule 76 267 47 confirmation of the ban on the use of herbicides as a method of warfare. These and other considerations led the negotiators of the Chemical Weapons Convention to recognise “the prohibition, embodied in pertinent agreements and relevant principles of international law, of the use of herbicides as a method 48 of warfare”. The Chemical Weapons Convention does not, however, define what use would qualify as a method of warfare. The United States, for example, has stated that it reserves the right to use herbicides “for control of vegetation within U.S. 49 bases and installations or around their immediate defensive perimeters”. It is clear, however, that the use of herbicides in armed conflict as a method of warfare would violate the general prohibition of the use of chemical weapons if they are of a nature to harm humans or animals (see Rule 74). In addition, the use of herbicides consisting of, or containing, biological agents would violate the Biological Weapons Convention in that it prohibits the use of all biological agents that are not for prophylactic, protective or other peaceful purposes (see Rule 73). In addition, attacks on vegetation by herbicides would violate the general rules on the conduct of hostilities if the vegetation is not a military objective (see Rule 7), if the attack causes excessive incidental civilian losses or damage to civilian objects (see Rule 14) or if the attack may be expected to cause wide- spread, long-term and severe damage to the natural environment (see Rule 45). Other rules of international humanitarian law that may be relevant to the use of herbicides are the prohibition of starvation as a method of warfare (see Rule 53) and the prohibition on attacking objects indispensable to the survival of the civilian population (see Rule 54), in case herbicides would be used against crops. Non-international armed conflicts Although there is less specific practice concerning the use of herbicides in non-international armed conflicts, the specific limitations on or prohibitions of the use of herbicides contained in this rule are general rules that apply also to non-international armed conflicts. In addition, recent allegations of possible use in Chechnya were denied by 50 This shows that there is a legitimate expectation on the Russian government. the part of States that herbicides must not be used in a way that would violate other rules applicable in any type of armed conflict. 47 See the statements of Argentina ( ibid ., § 614) and Sweden ( ibid ., § 614); see also the statement of the Netherlands ( ibid ., § 620). 48 ibid ., § 599). Chemical Weapons Convention, preamble ( 49 United States, Executive Order No. 11850 ( ibid ., § 627). 50 See “Russian army not to use defoliants in Chechnya”, ITAR-TASS, Moscow, 17 April 2000 ( ibid ., § 622).

329 chapter 25 EXPANDING BULLETS Rule 77. The use of bullets which expand or flatten easily in the human body is prohibited. Practice Volume II, Chapter 25. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The prohibition in respect of international armed conflicts was introduced in 1899 by the Hague Declaration concerning Expanding Bullets in reaction to the 1 development of the so-called “dum-dum” bullet for use in military rifles. The Declaration was ratified or acceded to by 28 States in the early years of the 20th century and 6 States succeeded to the Declaration in the second half of the 20th 2 century. The use of expanding bullets is listed as a war crime in the Statute of 3 the International Criminal Court. The prohibition has also been included in 4 other instruments. 1 Hague Declaration concerning Expanding Bullets (cited in Vol. II, Ch. 25, § 1). 2 The following states ratified or acceded to the Declaration: Austria-Hungary (4 September 1900), Belgium (4 September 1900), Bulgaria (4 September 1900), China (21 November 1904), Denmark (4 September 1900), Ethiopia (9 August 1935), France (4 September 1900), Germany (4 Septem- ber 1900), Great Britain and Ireland (13 August 1907), Greece (4 April 1901), Italy (4 September 1900), Japan (6 October 1900), Luxembourg (12 July 1901), Mexico (17 April 1901), Montenegro (16 October 1900), Netherlands (4 September 1900), Nicaragua (11 October 1907), Norway (4 September 1900), Persia (4 September 1900), Portugal (29 August 1907), Romania (4 Septem- ber 1900), Russia (4 September 1900), Serbia (11 May 1901), Siam (4 September 1900), Spain (4 September 1900), Sweden (4 September 1900), Switzerland (29 December 1900) and Turkey (12 June 1907). The following States succeeded to the Declaration: Byelorussian Socialist Soviet Republic (4 June 1962), Fiji (2 April 1973), German Democratic Republic (9 February 1959), South Africa (10 March 1978), USSR (7 March 1955) and Yugoslavia (8 April 1969). 3 ICC Statute, Article 8(2)(b)(xix) (cited in Vol. II, Ch. 25, § 2). 4 ibid ., § 3); Report of the Commission on See, e.g., Oxford Manual of Naval War, Article 16(2) ( Responsibility ( ibid ., § 4); UN Secretary-General’s Bulletin, Section 6.2 ( ibid ., § 5); UNTAET Regulation No. 2000/15, Section 6(1)(b)(xix) ( ibid ., § 6). 268

330 Rule 77 269 The prohibition of expanding bullets is set forth in numerous military 5 manuals. The use of expanding bullets in armed conflict is an offence under the 6 legislation of many States. The prohibition is also supported by official state- 7 ments and other practice. This practice includes that of many States which 8 are not party to the Hague Declaration. Practice is in conformity with the prohibition and no State has asserted that it would be lawful to use such ammunition. The only exception to a com- plete prohibition of the use of expanding bullets is possibly the practice of the United States, although it is ambiguous. While several of its military manuals 9 prohibit the use of expanding bullets, three legal reviews of ammunition and weapons by the US Department of the Army state that the United States will adhere to the Hague Declaration to the extent that the rule is consistent with Article 23(e) of the 1907 Hague Regulations, i.e. the prohibition of weapons 10 causing unnecessary suffering. Hence, the use of expanding ammunition is lawful according to the United States if there is “a clear showing of military 11 necessity for its use”. However, during the negotiation of the Statute of the International Criminal Court in 1998, the United States did not contest the criminality of the use of expanding ammunition. 5 ibid ibid ., § 9), Cameroon ( ibid ., See, e.g., the military manuals of Australia ( ., §§ 7–8), Belgium ( ., §§ 11–12), Dominican Republic ( ., § 13), Ecuador ( ibid ., § 14), France ibid ibid § 10), Canada ( ., §§ 15–17), Germany ( ibid ( ibid ., § 21), Italy ( ibid ., § 22), Kenya ( ibid ., ibid ., §§ 18–20), Israel ( ibid ., §§ 24–25), New Zealand ( ibid ., § 26), Nigeria ( § 23), Netherlands ( ., § 27), Russia ( ibid ., ibid § 28), South Africa ( ., § 29), Spain ( ibid ., § 30), United Kingdom ( ibid ., § 31) and United States ibid ibid ., §§ 33–35). ( 6 ibid ibid ., §§ 37–38), Canada ( ibid ., § 40), ., § 36), Australia ( See, e.g., the legislation of Andorra ( Congo ( ibid ., § 42), Estonia ( ibid ., § 43), Georgia ( ibid ., § 44), Germany ibid ., § 41), Ecuador ( ibid ., § 45), Italy ( ibid ., § 46), Mali ( ( ., § 47), Netherlands ( ibid ., § 48), New Zealand ( ibid ., ibid § 50), United Kingdom ( ., § 52) and Yugoslavia ( ibid ., § 53); see also the draft legislation of ibid ibid ., § 51). ibid Burundi ( ., § 39) and Trinidad and Tobago ( 7 See, e.g., the statements of Algeria ( ., § 55), Canada ( ibid ., § 56), Colombia ( ibid ., § 57), Egypt ibid ( ibid ., § 58), Finland ( ibid ., § 60), Iraq ( ibid ., § 64), Italy ( ibid ., § 65), Philippines ( ibid ., § 67), Sweden ( ibid ibid ., § 70), United States ( ibid ., §§ 71 and 73–77) and ., §§ 68–69), Switzerland ( ibid ., §§ 78–79), the practice of Indonesia ( ., § 63) and the reported practice of Yugoslavia ( ibid ., § 62) and Jordan ( ., § 66). ibid ibid India ( 8 See, e.g., the military manuals of Australia ( ibid ., § 10), Canada ( ibid ., ibid ., §§ 7–8), Cameroon ( ibid ., § 13), Ecuador ( ibid ., § 14), Israel ( ibid ., § 21), Kenya §§ 11–12), Dominican Republic ( ibid ., § 23), New Zealand ( ibid ., § 26), Nigeria ( ibid ., § 27) and United States ( ibid ., §§ 33–35), ( ibid ibid ibid ., §§ 37–38), Canada ( the legislation of Andorra ( ., § 40), Congo ., § 36), Australia ( ., § 43), Georgia ( ibid ( ., § 42), Estonia ( ibid ., § 41), Ecuador ( ibid ., § 44), Mali ( ibid ., § 47) and ibid New Zealand ( ibid ., § 50), the draft legislation of Burundi ( ibid ., § 39) and Trinidad and Tobago ( ibid ibid ., § 55), Canada ( ibid ., § 56), Colombia ( ibid ., § 57), ., § 51), the statements of Algeria ( ibid ., § 64), Philippines ( ibid ., § 60), Iraq ( ibid Egypt ( ibid ., § 67) and United ., § 58), Finland ( ibid ., §§ 71 and 73–77), the practice of Indonesia ( ibid ., § 63) and the reported practice States ( of India ( ., § 62) and Jordan ( ibid ., § 66). ibid 9 United States, Field Manual ( ibid ., § 33), Air Force Pamphlet ( ibid ., § 34) and Instructor’s Guide ( ., § 35). ibid 10 United States, Department of the Army, Memorandum of Law on Sniper Use of Open-Tip Ammunition ( ibid ., §§ 74–75), Legal Review of USSOCOM Special Operations Offensive Hand- gun ( ibid ., § 76) and Legal Review of the Fabrique Nationale 5.7 × 28mm Weapon System ( ibid ., § 77). 11 United States, Department of the Army, Legal Review of USSOCOM Special Operations Offensive Handgun ( ibid ., § 76).

331 270 expanding bullets Non-international armed conflicts The prohibition of expanding bullets in any armed conflict is set forth in sev- 12 eral military manuals. The use of expanding bullets is an offence under the 13 legislation of several States. Colombia’s Constitutional Court has held that the prohibition of “dum-dum” bullets in non-international armed conflicts is 14 part of customary international law. Practice is in conformity with the rule’s applicability in both international and non-international armed conflicts, as the same ammunition is used in non- international conflicts as in international conflicts, and bullets which expand or flatten easily in the human body are not employed in either case. That this general abstention is not purely coincidental can be deduced also from the fact that weapons which cause unnecessary suffering are prohibited in both international and non-international armed conflicts (see Rule 70) and that there 15 is general agreement that such bullets would cause unnecessary suffering. No official contrary practice was found with respect to either international or non-international armed conflicts. With the possible exception of the United States, no State has claimed that it has the right to use expanding bullets. How- ever, several States have decided that for domestic law-enforcement purposes, outside armed conflict, in particular where it is necessary to confront an armed person in an urban environment or crowd of people, expanding bullets may be used by police to ensure that the bullets used do not pass through the body of a suspect into another person and to increase the chance that once hit, the sus- pect is instantly prevented from firing back. It should be noted that expanding bullets commonly used by police in situations other than armed conflict are fired from a pistol and therefore deposit much less energy than a normal rifle bullet or a rifle bullet which expands or flattens easily. Police forces therefore do not normally use the type of expanding bullet that is prohibited for military rifles. The introduction of expanding bullets for police use indicates that States con- sider such bullets necessary for certain law-enforcement purposes. However, the use of expanding bullets has not been introduced for hostilities in armed conflicts. 12 See, e.g., the military manuals of Australia ( ibid ., § 7), Canada ( ibid ., § 12), Ecuador ( ibid ., § 14), France ( ibid ., §§ 16–17) (“totally prohibited”), Germany ( ibid ., §§ 18–20), Italy ( ibid ., § 22), Kenya ( ibid ibid ., § 29) and Spain ( ibid ., § 30) (“absolute prohibition”). ., § 23), South Africa ( 13 See, e.g., the legislation of Andorra ( ., § 36), Ecuador ( ibid ., § 42), Estonia ( ibid ., § 43), ibid Germany ( ., § 45) and Yugoslavia ( ibid ., § 53); see also the legislation of Italy ( ibid ., § 46), ibid the application of which is not excluded in time of non-international armed conflict. 14 Colombia, Constitutional Court, Constitutional Case No. C-225/95 ( ibid ., § 54). 15 See, e.g., Hague Declaration concerning Expanding Bullets (cited in Vol. II, Ch. 20, § 3); the military manual of Australia ( ibid ., § 34) (“hollow point weapons”), Ecuador ( ibid ., § 52), France ( ibid ., §§ 55–56), Germany ( ibid ., §§ 57–59), Netherlands ( ibid ., §§ 71–72), Russia ( ibid ., § 78), South Africa ( ibid ., 80), United States ( ibid ., § 91) and Yugoslavia ( ibid ., § 94).

332 Rule 77 271 Interpretation As far as the design of the bullets is concerned, a number of military manu- als refer to the wording of the Hague Declaration or specify that “dum-dum” 16 bullets (i.e., “soft-nosed” or “hollow-point” bullets) are prohibited. However, most manuals specifically refer to the fact that the bullet expands or flattens easily, rather than to whether it has a hollow point, soft nose or incisions, as 17 indicated by way of example in the Hague Declaration. Germany’s Military Manual adds examples of other types of projectiles that create large wounds similar to those caused by “dum-dum” bullets: projectiles of a nature to burst or deform while penetrating the human body, to tumble early in the human body or to cause shock waves leading to extensive tissue damage or even lethal 18 shock. A memorandum of law on sniper use of open-tip ammunition pre- pared by the US Department of the Army in 1990 found that a certain type of hollow-point bullet was not unlawful because it did not expand or flatten eas- ily, and the particular circumstances of intended use, namely by army snipers, 19 was justified because of the accuracy at long range that the design allowed. 16 See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 25, §§ 7–8), Dominican Republic ibid ., § 13), Germany ( ( ., § 18), Israel ( ibid ., § 21), Netherlands ( ibid ., § 25), New Zealand ibid ( ibid ., § 26), South Africa ( ibid ., § 29), United Kingdom ( ibid ., §§ 31–32) and United States ( ibid ., §§ 33 and 35). 17 ibid ibid ., § 10), Canada ( ibid ., See, e.g., the military manuals of Belgium ( ., § 9), Cameroon ( ibid §§ 11–12), Ecuador ( ibid ., §§ 15–17), Germany ( ibid ., §§ 19–20), Italy ( ibid ., ., § 14), France ( § 22), Kenya ( ibid ., § 23), Netherlands ( ibid ., § 24), Nigeria ( ibid ., § 27), Russia ( ibid ., § 28), Spain ( ., § 30) and United States ( ibid ., § 34). ibid 18 Germany, Military Manual ( ibid ., § 19). 19 United States, Department of the Army, Memorandum of Law on Sniper Use of Open-Tip Ammunition ( ibid ., § 75).

333 chapter 26 EXPLODING BULLETS Rule 78. The anti-personnel use of bullets which explode within the human body is prohibited. Practice Volume II, Chapter 26. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts The prohibition of exploding bullets originated in 1868 with the adoption of the St. Petersburg Declaration, which was motivated by the desire to avoid hors inflicting suffering which exceeded that needed to render a combatant . To this end, the Declaration specifically prohibits the use of “any de combat projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances”, 400 grams being the weight 1 Nineteen States adhered to the of the smallest artillery shell at the time. St. Petersburg Declaration in 1868 or 1869, i.e., most of the States in existence 2 at that time. The prohibition contained in the St. Petersburg Declaration was repeated in the Brussels Declaration, the Oxford Manual and the Oxford Manual 3 of Naval War. The Report of the Commission on Responsibility set up after the First World War identified the use of “explosive bullets” as a war crime 4 under customary international law. Practice since the adoption of the St. Petersburg Declaration has modified this prohibition, as exploding anti-aircraft bullets were introduced in the First 1 St. Petersburg Declaration (cited in Vol. II, Ch. 26, § 1). 2 Austria-Hungary, Baden, Bavaria, Belgium, Brazil, Denmark, France, Greece, Italy, Netherlands, Persia, Portugal, Prussia and the North German Confederation, Russia, Sweden and Norway, Switzerland, Turkey, United Kingdom and W urtemberg. Estonia adhered in 1991. ̈ 3 Brussels Declaration, Article 13(e) ( ibid ., § 2); Oxford Manual, Article 9(a) ( ibid ., § 3); Oxford Manual of Naval War, Article 16(2) ( ibid ., § 4). 4 Report of the Commission on Responsibility ( ibid ., § 5). 272

334 Rule 78 273 5 Furthermore, lighter grenades and exploding anti-materiel bullets World War. have been introduced since. These developments have occurred without any objection. The military manuals or statements of several States consider only the anti-personnel use of such projectiles to be prohibited or only if they are 6 designed to explode upon impact with the human body. Some military man- uals and legislation, nevertheless, continue to refer back to the wording of the prohibition contained in the St. Petersburg Declaration, even though practice 7 has since modified this prohibition. Further to concerns that arose following tests which showed that certain 12.7 mm bullets exploded in human tissue simulant, the ICRC convened, in 1999, a group of military, legal and ballistics experts from four States that manu- factured or stocked the 12.7 mm exploding bullet (and therefore “specially affected” States). The governmental experts, who participated in their personal capacity, agreed that the targeting of combatants with bullets the foreseeable effect of which was to explode on impact with the human body would be 8 contrary to the object and purpose of the St. Petersburg Declaration. Non-international armed conflicts The prohibition of exploding bullets in any armed conflict is contained in sev- 9 eral military manuals and in the legislation of several States. It is also sup- 10 ported by other practice. In addition, the UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law, which is not limited to international armed conflicts, prohibits the use of bullets 11 which explode in the human body. 5 This development is reflected in Article 18 of the Hague Rules of Air Warfare ( ., § 6), which ibid states that “the use of tracer, incendiary or explosive projectiles by or against aircraft is not prohibited. This provision applies equally to states which are parties to the Declaration of St. Petersburg, 1868, and to those which are not.” 6 ibid ., § 13), Italy ( ibid ., § 14) and United Kingdom See, e.g., the military manuals of Germany ( ( ibid ibid ., § 28) and United States ( ibid ., §§ 35–36). ., §§ 18–19) and the statements of Brazil ( 7 See, e.g., the military manuals of Australia ( ibid ., §§ 8–9), Canada ( ibid ., § 11), New Zealand ( ibid ., § 15), Spain ( ibid ., § 17), United States ( ibid ., § 20), the legislation of Andorra ( ibid ., § 21), Australia ( ibid ibid ., § 23) and Yugoslavia ( ibid ., § 26) and the statements ., § 22), Ecuador ( ibid ibid ., § 29), and Yugoslavia ( ibid ., § 37); see also the reported of Brazil ( ., § 28), Colombia ( ibid ., § 30) and Jordan ( ibid ., § 31). practice of Indonesia ( 8 See ICRC, Statement before the First Committee of the UN General Assembly ( ibid ., § 46) and Ensuring respect for the 1868 St. Petersburg Declaration: Prohibiting the use of certain explosive projectiles, Report submitted to the Third Preparatory Committee for the Second Review Conference of the States Parties to the CCW ( ibid ., § 47). 9 See, e.g., the military manuals of Australia ( ibid ., § 8), Germany ( ibid ., § 13), Italy ( ibid ., § 14) and Spain ( ibid ibid ., § 21), Ecuador ( ibid ., ., § 17) (“total prohibition”) and the legislation of Andorra ( ibid ., § 26); see also the legislation of Italy ( ibid ., § 24), the application of § 23) and Yugoslavia ( which is not excluded in time of non-international armed conflict. 10 See, e.g., the statement of Yugoslavia ( ., § 37) and the reported practice of Indonesia ( ibid ., ibid 30) and Jordan ( ibid ., § 31). 11 UN Secretary-General’s Bulletin, Section 6.2 ( ibid ., § 7).

335 274 exploding bullets Practice shows no evidence of the anti-personnel use of bullets which explode within the human body in non-international armed conflicts. In particular, States have indicated that the anti-personnel use of exploding bul- 12 lets would cause unnecessary suffering. The rule prohibiting means of warfare which cause unnecessary suffering is applicable in both international and non- international armed conflicts (see Rule 70). No official contrary practice was found with respect to either international or non-international armed conflicts. No State has claimed the right to use against personnel bullets which explode within the human body. The effect of bullets which explode within the human body are much worse than that of expanding bullets, which are also prohibited (see Rule 77). 12 See, e.g., St. Petersburg Declaration ( ibid ., § 1) and the military manuals of Germany (cited in Vol. II, Ch. 20, § 58) and Russia ( ibid ., § 78).

336 chapter 27 WEAPONS PRIMARILY INJURING BY NON-DETECTABLE FRAGMENTS Rule 79. The use of weapons the primary effect of which is to injure by fragments which are not detectable by X-rays in the human body is prohibited. Practice Volume II, Chapter 27. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts Protocol I to the Convention on Certain Conventional Weapons prohibits the use of weapons the primary effect of which is to injure by fragments not 1 detectable by X-rays. It was adopted without any controversy. 2 The prohibition is contained in numerous military manuals. The use of weapons injuring by fragments not detectable by X-rays is a war 3 crime under the legislation of some States. It is also supported by offi- 4 cial statements and reported practice. This practice includes that of 1 Protocol I to the CCW (cited in Vol. II, Ch. 27, § 1). 2 ., § 8), Australia ( See, e.g., the military manuals of Argentina ( ., §§ 9–10), Belgium ( ibid ., ibid ibid ibid ., § 12), Ecuador ( ibid ., § 13), France ( ibid § 11), Canada ( ibid ., §§ 16–17), ., §§ 14–15), Germany ( Israel ( ., § 18), Italy ( ibid ., § 19), Kenya ( ibid ., § 20), Netherlands ( ibid ., § 21), New Zealand ibid ibid ., § 26), ibid ., § 23), Russia ( ibid ., § 24), South Africa ( ibid ., § 25), Spain ( ibid ( ., § 22), Nigeria ( ibid ., § 28), United Kingdom ( ibid Sweden ( ibid ., §§ 29–30) and United States ., § 27), Switzerland ( ibid ( ., §§ 31–34). 3 See, e.g., the legislation of Estonia ( ibid ., § 35) and Hungary ( ibid ., § 36). 4 See, e.g., the statements of Australia ( ibid ., §§ 39–40), Austria ( ibid ., §§ 38–39), Belarus ( ibid ., § 39), Belgium ( ibid ibid ., § 39), Canada ( ibid ., § 39), Colombia ( ibid ., § 38), ., § 39), Bulgaria ( ibid ibid ., §§ 38–39), Finland ( ibid ., § 39), France ( ibid ., § 39), Federal Cuba ( ., § 39), Denmark ( ibid ., §§ 38–39), German Democratic Republic ( ibid Republic of Germany ( ibid ., ., § 39), Greece ( § 39), Hungary ( ibid ., § 39), India ( ibid ., § 41), Ireland ( ibid ., § 39), Italy ( ibid ., § 39), Jamaica ( ibid ., § 39), Mexico ( ibid ., §§ 38–39), Morocco ( ibid ., § 39), Netherlands ( ibid ., §§ 39 and 45), New Zealand ( ibid ibid ., §§ 38–39), Panama ( ibid ., § 39), Philippines ( ibid ., ., § 39), Norway ( § 39), Poland ( ., § 39), Portugal ( ibid ., § 39), Romania ( ibid ., § 39), Spain ( ibid ., §§ 38–39), ibid Sudan ( ibid ., § 39), Sweden ( ibid ., §§ 38–39), Switzerland ( ibid ., §§ 38–39), Syria ( ibid ., § 39), Togo ( ibid ., § 39), Ukraine ( ibid ., § 39), USSR ( ibid ., § 39), United Kingdom ( ibid ., § 39), United States 275

337 276 weapons injuring by non-detectable fragments States not at the time party to the Convention on Certain Conventional 5 Weapons. Non-international armed conflicts When adopted, Protocol I to the Convention on Certain Conventional Weapons only applied to international armed conflicts. However, on ratification of the Convention, France, Israel and the United States stated that they would apply 6 the Protocol to non-international armed conflicts as well. At the Second Review Conference of the Convention on Certain Conventional Weapons in 2001, the Convention was amended to extend application of the Protocol also 7 to non-international armed conflicts. The amendment was not controversial 8 during the negotiations and has meanwhile entered into force. In addition, the UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law, which is not limited to international armed conflicts, prohibits the use of weapons primarily injuring by non-detectable 9 fragments. The prohibition in any armed conflict is contained in several military man- 10 uals. The use of weapons injuring by fragments not detectable by X-rays is a 11 war crime under the legislation of some States. It is also supported by official 12 statements and reported practice. Practice is in conformity with the rule’s applicability in both international and non-international armed conflicts, as States generally do not have a different set of military weapons for international and non-international armed conflicts. No weapons the primary effect of which is to injure by non-detectable fragments appear to exist, although the ability to produce them has been widely available ibid ., §§ 38–39 and 46), Venezuela ( ibid ibid ., §§ 38–39) and Zaire ( ibid ., ( ., §§ 38–39), Yugoslavia ( ibid § 39) and the reported practice of India ( ibid ., § 43) and Jordan ( ibid ., § 44). ., § 42), Indonesia ( 5 See, e.g., the military manuals of Argentina ( ibid ., § 8), Belgium ( ibid ., § 11), Italy ( ibid ., § 19), Kenya ( ibid ., § 20) and New Zealand ( ibid ., § 22) and the reported practice of Indonesia ( ibid ., § 43). 6 ibid France, Reservations made upon ratification of the CCW ( ., § 3); Israel, Declarations and understandings made upon accession to the CCW ( ibid ., § 4); United States, Declaration made upon ratification of the CCW ( ibid ., § 5). 7 ibid CCW, amended Article 1 ( ., § 6). 8 The amendment entered into force on 18 May 2004. To date, 29 States have ratified the amended CCW: Argentina, Australia, Austria, Belgium, Bulgaria, Burkina Faso, Canada, China, Croatia, Estonia, Finland, France, Holy See, Hungary, Japan, Latvia, Liechtenstein, Lithuania, Mexico, Netherlands, Norway, Republic of Korea, Romania, Serbia and Montenegro, Slovakia, Spain, Sweden, Switzerland and United Kingdom. 9 UN Secretary-General’s Bulletin, Section 6.2 (cited in Vol. II, Ch. 27, § 7). 10 See, e.g., the military manuals of Australia ( ibid ., § 9), Ecuador ( ibid ., § 13), France ( ibid ., §§ 14– 15) (“totally prohibited”), Germany ( ibid ibid ., § 19), Kenya ( ibid ., § 20), South ., §§ 16–17), Italy ( ibid ., § 25) and Spain ( ibid ., § 26) (“absolute prohibition”). Africa ( 11 See, e.g., the legislation of Estonia ( ibid ., § 35); see also the legislation of Hungary ( ibid ., § 36), the application of which is not excluded in time of non-international armed conflict. 12 See, e.g., the statement of India ( ibid ., § 41) and the reported practice of India ( ibid ., § 42), Indonesia ( ibid ., § 43) and Jordan ( ibid ., § 44).

338 Rule 79 277 for a very long time. That this general abstention is not purely coincidental can be deduced also from the fact that weapons which cause unnecessary suffering are prohibited in both international and non-international armed conflicts (see Rule 70) and that there is general agreement that such weapons would cause 13 unnecessary suffering. No official contrary practice was found with respect to either international or non-international armed conflicts. No State has claimed that it may use weapons the primary effect of which is to injure by non-detectable fragments in any type of armed conflict. Interpretation The reasoning behind the adoption of Protocol I to the Convention on Certain Conventional Weapons was that weapons injuring by non-detectable fragments would make it very difficult to treat the resulting wounds, that the extra suf- fering caused by this difficulty has no military utility and that they would therefore cause unnecessary suffering. This view is supported by the assertion made in the UK Military Manual, drafted well before the adoption of Protocol I to the Convention on Certain Conventional Weapons, that the prohibition on 14 causing unnecessary suffering included “projectiles filled with broken glass”. It is for this reason that Protocol I to the Convention on Certain Conventional Weapons specifies that prohibited weapons are those whose “primary effect” is to injure by non-detectable fragments. Weapons which contain plastic, for example, as part of their design, are therefore not illegal if the plastic is not part 15 of the primary injuring mechanism. 13 See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 20, § 34), Ecuador ( ibid ., § 52), France ( ., §§ 55–56), Germany ( ibid ., § 59), Netherlands ( ibid ., §§ 71–72), New Zealand ibid ( ibid ., § 73), South Africa ( ibid ., § 80), United Kingdom ( ibid ., § 85) and United States ( ibid ., §§ 87, 89, 91 and 93). 14 United Kingdom, Military Manual (cited in Vol. II, Ch. 27, § 29); see also the military manuals of Nigeria ( ibid ., § 23) and United States ( ibid ., §§ 31–33). 15 See, e.g., United States, Legal Review of Maverick Alternate Warhead ( ibid ., § 46).

339 chapter 28 BOOBY-TRAPS Rule 80. The use of booby-traps which are in any way attached to or associated with objects or persons entitled to special protection under international humanitarian law or with objects that are likely to attract civilians is prohibited. Practice Volume II, Chapter 28. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. International armed conflicts Both treaty practice and other State practice support the premise that booby- traps are prohibited if, by their nature or employment, their use violates the legal protection accorded to a protected person or object by another custom- ary rule of international humanitarian law. This is the reasoning behind the list of booby-traps prohibited in Protocol II and Amended Protocol II to the 1 Convention on Certain Conventional Weapons. The list of booby-traps prohibited by Protocol II and Amended Protocol II to the Convention on Certain Conventional Weapons is found in the military 2 manuals and legislation of some States party to these treaties. Other mili- tary manuals are more general in their description and stress that booby-traps associated with objects in normal civilian daily use are prohibited, and that booby-traps must not be used in association with protected persons, protected objects (such as medical supplies, gravesites and cultural or religious property) or internationally recognised protective emblems or signs (such as the red cross 1 Protocol II to the CCW, Article 6(1) (cited in Vol. II, Ch. 28, § 5); Amended Protocol II to the ibid CCW, Article 7(1) ( ., § 5). 2 ibid See, e.g., the military manuals of Australia ( ibid ., § 36), France ( ibid ., ., §§ 30–31), Canada ( § 41), Germany ( ibid ., § 42), Israel ( ibid ., § 44), Kenya ( ibid ., § 45), Netherlands ( ibid ., § 46) and New Zealand ( ibid ., § 47) and the legislation of South Korea ( ibid ., § 61). 278

340 Rule 80 279 3 and red crescent). Several manuals further specify that booby-traps must not be used in connection with certain objects likely to attract civilians, such as 4 children’s toys. These prohibitions are also to be found in the military man- uals and statements of States not, or not at the time, party to Protocol II or 5 Amended Protocol II to the Convention on Certain Conventional Weapons. Non-international armed conflicts The premise behind the prohibitions of the use of certain kinds of booby-traps or the use of booby-traps in certain situations during international armed con- flicts is equally valid for non-international armed conflicts. Furthermore, dur- ing the discussions on the extension of the applicability of Amended Protocol II to the Convention on Certain Conventional Weapons to non-international armed conflicts, the application of the Protocol’s provisions on booby-traps to such conflicts was uncontested. Although the discussions took place in the context of treaty negotiations, they indicate that States considered it pertinent that civilians and objects protected by the rules of international humanitarian law applicable in non-international armed conflicts should equally be protected against booby-traps that would have the effect of violating those rules. In addition, the regulation of booby-traps is also contained in military man- 6 uals and national legislation applicable in non-international armed conflicts. Colombia’s Constitutional Court has held that the prohibition of certain booby- traps in non-international armed conflicts is part of customary international 7 law. Use of other booby-traps Booby-traps which are used in a way not prohibited by the current rule are still subject to the general rules on the conduct of hostilities, in particular the principle of distinction (see Rules 1and 7) and the principle of proportionality (see Rule 14). In addition, the rule that all feasible precautions must be taken to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects (see Rule 15) must also be respected. 3 See, e.g., the military manuals of Cameroon ( ., § 34), Ecuador ( ibid ., § 38), Switzerland ( ibid ., ibid §§ 52–54) and United States ( ibid ., §§ 56 and 58). 4 See, e.g., the military manuals of Belgium ( ibid ., § 32), France ( ibid ., § 39) and Germany ( ibid ., § 43). 5 ibid ibid ., § 32), Cameroon ( ibid ., § 34), See the military manuals of Argentina ( ., § 29), Belgium ( Kenya ( ., § 45) and United States ( ibid ., §§ 56–58) and the statement of Egypt ( ibid ., § 66). ibid 6 See, e.g., the military manuals of Australia ( ibid ., § 30), Canada ( ibid ., § 37), Ecuador ( ibid ., § 38), Germany ( ., §§ 42–43), Kenya ( ibid ., § 45) and South Africa ( ibid ., § 49) and the legislation ibid of Estonia ( ibid ., § 59); see also the legislation of Hungary ( ibid ., § 60), the application of which is not excluded in time of non-international armed conflict. 7 Colombia, Constitutional Court, Constitutional Case No. C-225/95 ( ibid ., § 62).

341 chapter 29 LANDMINES Rule 81. When landmines are used, particular care must be taken to minimise their indiscriminate effects. Practice Volume II, Chapter 29, Section B. Summary State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule applies to the use of anti-vehicle mines. It also applies in relation to anti- personnel landmines for States which have not yet adopted a total ban on their use. International armed conflicts Many of the rules in both the original and amended versions of Protocol II to the Convention on Certain Conventional Weapons, as well as other State practice, 1 are aimed at obviating the indiscriminate effects of mines. The provisions of these treaties, which include the prohibitions of certain types of mines as well as further limitations, are specifically aimed at limiting the potentially indiscriminate damage caused by these weapons. Furthermore, practice shows that the customary rules applying to the conduct of hostilities, such as the principle of distinction (see Rules 1 and 7), the principle of proportionality (see Rule 14) and the obligation to take all feasible precautions in attack (see Rule 15), are equally applicable to the use of landmines. The obligation to take particular care when using landmines is based on a number of rules that have been codified in Protocol II to the Convention on 1 In particular, the prohibitions of certain types of mines contained in Amended Protocol II to the ibid ., § 3), Article 4 ( ibid ., § 4), Article CCW, Article 3(5) (cited in Vol. II, Ch. 29, § 2), Article 3(6) ( 6(2) ( ibid ., § 5) and Article 6(3) ( ibid ., § 6) and the further limitations contained in Protocol II to the CCW, Articles 4–5 ( ibid ., § 194) and Amended Protocol II, Articles 5–6 ( ibid ., § 203). 280

342 Rule 81 281 Certain Conventional Weapons. This Protocol sets out general rules on the 2 emplacement of all landmines. It also outlines specific restrictions on the use of remotely delivered landmines and non-remotely delivered landmines used in 3 populated areas. In addition, the Protocol requires that all feasible precautions 4 be taken to protect civilians from the effects of these weapons. The Protocol also refers to special precautionary measures such as marking and signposting of minefields, recording minefields, monitoring minefields and procedures to 5 protect UN forces and missions. Protocol II to the Convention on Certain Conventional Weapons was adopted by consensus and was not controversial at the time. Many military manuals set forth special precautionary measures to be taken 6 when using landmines. There are also indications that the provisions of Protocol II to the Convention on Certain Conventional Weapons are consid- ered to constitute an authoritative minimum standard in relation to the use of landmines which are not specifically prohibited under treaty obligations, 7 as are anti-personnel landmines under the Ottawa Convention. As a result, these precautionary measures as a whole provide an indication of the types of measures States believe must be taken to minimise the indiscriminate effects of landmines. Amended Protocol II to the Convention on Certain Conventional Weapons reaffirms and develops the precautionary measures to be taken when using 8 landmines. Non-international armed conflicts The original Protocol II to the Convention on Certain Conventional Weapons was only applicable in international armed conflicts, and physical practice in internal conflicts has for the most part not been consistent with these rules. However, the concern shown by the UN Security Council, UN General 2 ibid Protocol II to the CCW, Article 7 ( ., § 341). 3 Protocol II to the CCW, Articles 4–5 ( ibid ., § 194). 4 Protocol II to the CCW, Article 3(4) ( ibid ., § 192). 5 Protocol II to the CCW, Article 4(2) ( ibid ., § 194), Article 7 ( ibid ., § 341) and Article 8 ( ibid ., § 342). 6 ibid ibid ., §§ 222–223), Bel- See, e.g., the military manuals of Argentina ( ., § 221), Australia ( ibid ., § 224), Cameroon ( ibid ., § 225), Canada ( ibid ., § 226), France ( gium ( ., §§ 227–228), ibid Germany ( ibid ., § 229), Israel ( ibid ., § 230), Kenya ( ibid ., § 231), Netherlands ( ibid ., § 232), New Zealand ( ibid ., § 233), Spain ( ibid ., § 234), Sweden ( ibid ., § 235) and United States ( ibid ., §§ 236–238). 7 ibid ., § 245) and UN General Assembly, Res. 49/75 D ( ibid See, e.g., the statement of Canada ( ., § 283) and Res. 50/70 O ( ibid ., § 283). 8 See, e.g., Amended Protocol II to the CCW, Article 3(10) ( ibid ., § 192), Article 3(11) ( ibid ., § 202), Articles 5–6 ( ibid ., § 203), Article 9 ( ibid ., § 350), Article 10 ( ibid ., § 351) and Article 12 ( ibid ., § 352).

343 282 landmines Assembly and individual States about the effects of landmines on civilians in non-international armed conflicts is an indication of the international com- munity’s view that civilians must be protected from mines in such situa- 9 tions. The extension of the scope of application of Amended Protocol II to the Convention on Certain Conventional Weapons to non-international armed 10 conflicts reflects this view. Since then, the Convention on Certain Con- ventional Weapons itself has been amended so that the original Protocol II is also applicable in non-international armed conflicts for States adhering to 11 the amended Convention. The amendment, adopted at the Second Review Conference in 2001, was not controversial. Hence, there is a strong case for the existence of a customary rule in non-international armed conflicts that mines must not be used in ways that amount to indiscriminate attacks and that particular care must therefore be taken to minimise their indiscriminate effects. Anti-personnel landmines With over 140 ratifications of the Ottawa Convention, and others on the way, the majority of States are treaty-bound no longer to use, produce, stockpile and transfer anti-personnel landmines. However, several States, including China, Finland, India, South Korea, Pakistan, Russia and the United States, have not ratified the Ottawa Convention and maintain that they are still entitled to use 12 anti-personnel landmines. About a dozen non-party States have used anti- 13 personnel mines in recent conflicts. This practice means that it cannot be said at this stage that the use of anti-personnel landmines is prohibited under customary international law. However, almost all States, including those that are not party to the Ottawa Convention and are not in favour of their immediate ban, have agreed that they need to work towards the eventual elimination of anti-personnel land- mines. Particularly noteworthy is the Final Declaration adopted by consensus by States party to the Convention on Certain Conventional Weapons at the Second Review Conference in 2001, including by a number of States not party to 9 See, e.g., UN Security Council, Res. 965 ( ., § 277), Res. 1005 ( ibid ., § 278), Res. 1076 ( ibid ., ibid § 279), Res. 1089 ( ibid ., § 280) and Res. 1096 ( ibid ., § 281); UN General Assembly, Res. 49/198 ( ibid ., § 285), Res. 49/199 ( ibid ., § 284), Res. 50/178 ( ibid ., § 284), Res. 50/197 ( ibid ., § 285), Res. 51/98 ( ibid ibid ., § 285) and Res. 55/116 ( ibid ., § 289) and the statements ., § 284), Res. 51/112 ( ibid ibid ibid ., §§ 244–245)